COMMONWEALTH OF PENNSYLVANIA VS. EDWARD BATZIG

Transcription

IN THE SUPERIOR COURT OF PENNSYLVANIA
SITTING AT PHILADELPHIA
NO. 1711
EDA 2005
COMMONWEALTH OF PENNSYLVANIA
VS.
EDWARD BATZIG,
Appellant
BRIEF FOR APPELLANT
Appeal From The Judgment Of Sentence Of The Court Of
Common Pleas Of Philadelphia County, Tria! Division,
Criminal Section, Order Entered May 5, 2005, Imposed On
Information No. 1389 1/4, June Term, 2003.
BRADLEY S. BRIDGE,
Assistant Defender
OWEN W. LARRABEE,
Assistant Defender
Deputy Chief, Appeals Division
KARL BAKER, Assistant Defender
Chief, Appeals Division
ELLEN T. GREENLEE, Defender
Defender Association
of Philadelphia
1441 Sansom Street
Philadelphia, Pennsylvania 19102
Identification No. 00001
(215) 568-3190
CONSTANCE DE LA VEGA
Frank C. Newman International
Human Rights Clinic
University of San Francisco
School of Law
May, 2008
BRIAN J. FOLEY, Visiting
Associate Professor of Law
Drexel University Earle Mack
Schoo! of Law
Philadelphia, PA
MICHELLE LEIGHTON
Director Human Rights Programs
Center for Law & Global
Justice
School of Law
Philadelphia, PA
MARSHA LEVICK
Legal Director
LAVAL S. MILLER-WILSON
Senior Attorney
MIA V. CARPINIELLO
Staff Attorney
Juvenile Law Center
The Philadelphia Building
1315 Walnut Street, 4th Floor
Philadelphia, PA 19107
TABLE OF CONTENTS
PAGE
STATEMENT OF JURISDICTION
1
STATEMENT OF SCOPE AND STANDARD
OF REVIEW
2
III.
STATEMENT OF QUESTIONS INVOLVED
3
IV.
STATEMENT OF THE CASE
4-7
V.
SUMMARY OF ARGUMENT
8-9
VI.
ARGUMENT
10-66
I.
IT WAS ERROR TO DENY THE MOTION TO
SUPPRESS WHERE THE SUPPRESSION JUDGE FOUND
THAT THE OFFICER’S STATEMENT DURING QUESTIONING WAS LIKELY TO ELICIT AN INCRIMINATING
RESPONSE AND THE OFFICER HAD NOT PRECEDED THAT
STATEMENT WITH MIRANDA WARNINGS.
10-17
2.
EDDIE BATZIG WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT OF EQUAL PROTECTION AND
DUE
PROCESS WHERE THE TRIAL COURT REFUSED TO
EXCUSE FOR CAUSE A PROSPECTIVE JUROR WITH A
FIXED OPINION THAT WHOEVER COMMITTED THIS
KILLING WAS GUILTY OF FIRST DEGREE MURDER. 17-23
3. THE INTRODUCTION IN A JOINT TRIAL OF THE
INCRIMINATORY STATEMENTS OF A NON-TESTIFYING
CO-DEFENDANT DENIED EDDIE BATZIG HIS CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES
AGAINST HIM.
23-28
4.
WHERE NEITHER EDDIE BATZIG NOR HIS CODEFENDANTS WERE ELIGIBLE TO BE SENTENCED TO
DEATH IT WAS ERROR FOR HIS GUILT TO BE
DETERMINED BY A DEATH QUALIFIED JURY AND TO
EXCLUDE FROM SERVICE JURORS QUALIFIED TO SIT
IN A NON-CAPITAL JURY TRIAL.
28-34
ii
Schall v. Martin, 467 U.S. 253 (1984) ...........
53
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .......
53
Smith v. Texas, 311 U.S. 128 (1940) ............
30
Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003) ......
39
Stanford v. Kentucky, 492 U.S. 361 (1989) .........
50
Paquete Habana, 175 U.S. 677 (1900) ............
59
Zschernig v. Miller, 389 U.S. 429 (1968) ..........
55
STATE CASES
Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717 (2000)
36
Commonwealth v. Buck, 551 Pa. 184, 709 A.2d 892 (1998)
33
Commonwealth v. Carter, 855 A.2d 885 (Pa. Super. 2004), appeal
denied, 581 Pa. 670, 863 A.2d 1142 (2004)
61
Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977)
41
Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), cert.
denied, 127 S.Ct. I01 (2006) .......... 41
Commonwealth v. DeJesus, 567 Pa. 415, 787 A.2d 394 (2001)
15
Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978)63
Commonwealth v. Dye, 765 A.2d 1123 (Pa. Super. 2000) ....
Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991)
18
61
Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898 (2004)
35
Commonwealth v. Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422
(1995) ..................... 19
Commonwealth v. Inqber, 516 Pa. 2, 531 A.2d Ii01 (1987)
19,22
Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509 (1982)
22,23
Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978)
19
Commonwealth v. Kocher, 529 Pa. 303, 602 A.2d 1308 (1992)
62
Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999)
18,41
V
Commonwealth v. Kratsas, 564 Pa. 36, 764 A.2d 20 (2001)
32
Commonwealth v. Lucas, 424 Pa. Super. 173, 622 A.2d 325 (1993) 62
Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203 (1997)
38
Commonwealth v. Miller, 897 A.2d 1281 (Pa. Super., 2006)
37
Commonwealth v. 0verby, 570 Pa. 328, 809 A.2d 295 (2002)
27
Commonwealth v. Presbury, 445 Pa. Super. 362, 665 A.2d 825 (1995)
......................... 26
Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d I01 (1975)
63
Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131 (2001), cert.
den., 535 U.S. 955 (2002) ............ 26
Commonwealth v. Reed, 300 Pa. Super. 224, 446 A.2d 311 (1982) 41
Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460 (2004)
..................... 18,22,38
Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980)
63
Commonwealth v. Strunk, 400 Pa. Super. 25, 582 A.2d 1326 (1990)62
den., 535 U.S. 955 (2002) ............ 26
commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984)
63
Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987)
63
Commonwealth v. Wilson,911 A.2d 942 (Pa. Super. 2006)
46
Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982),
cert.
denied, 461 U.S. 970 (1983) ..........
61
Naovarath v. State, 105 Nev. 525, 779 P.2d 944 (Nev. 1989)
64
Nicaragua v. U.S., 1986 I.C.J. 14, 98, para. 186 ......
58
People v. Miller, 202 Il!. 2d 328 (2002) ..........
66
Reed v. Florida, 496 So. 2d 213 (Ct. of Appeals, Florida, 1986)33
State v. Corey, 339 S.C. 107, 529 S.E.2d 20 (S.C. 2000)
49
State v. St. Pierre, 584 A.2d 618 (Me. 1990) ........
49
U.K.v. Norway, 1951 I.C.J. 116, 138-39 ..........
58
vi
Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968) .....
64
STATE STATUTES
Ala. Code ~ 12-15-34 (1994 & Supp. 2005) ..........
48
Alaska Stat. § 12.55.125(a), (h), & (j)(LexisNexis 2004)
48
Ariz. Rev. Stat. Ann. ~ 13-501(A)(i) (2001 & Supp. 2005)
48
Ariz. Rev. Stat. Ann. § 13-501(B)(I) (2001 & Supp. 2005)
48
Ark. Code Ann. § 9-27-318 (2002 & Supp. 2005) .......
48
Cal. Penal Code ~190.5(b) (Deering 2006) (no LWOP be!ow age 16)49’
Conn. Gen. Stat. Ann. ~46b-127 (West 2004 & Supp. 2005)
48
D.C.~Code § 22-2104(a) (2005) ...............
48
Del. Code Ann. Tit. I0, ~§ i010, I011 (1999 & Supp. 2004)
49
Del. Code Ann. Tit. ii, ~4209 (2005) ............
49
Fla. Stat. §775.082, (2005) ................
49
Fla. Stat. § 985.225 (2005) ................
49
Ind. Code Ann. ~35-50-2-3(b) (LexisNexis 2002) (no LWOP below age
16) ........... ¯ ........... 49
Iowa Code Ann. § 232.45 (6) (a) (West 2000 & Supp. 2006)
48
Kan. Stat. Ann. ~21-4622 (2005 Supp.) ...........
48
Ky. Rev. Stat. Ann. §532.025 (LexisNexis 1999 & Supp. 2005)
48
Ky. Rev. Stato Ann. ~ 635.020, 640.010 (LexisNexis 1999 & Supp.
2005) ..................... 48
Mass. Gen. Laws Ann. ch. 119, ~ 72(b) (West 2003 & Supp. 2005) 48
Me. Rev. Stat. Ann. Tit. 15, § 3101 (2003 and West Supp. 2005) 49
Me. Rev. Stat. Ann. Tit. 17-A, § 1251 (West Supp. 2005)
49
Mich. Comp. Laws Ann. ("M.C.L.A.")~ 712A.4 .........
49
Minn. Stat. Ann. ~ 260B.125 (2003 & Supp. 2006) ......
48
Miss. Code Ann., § 43-21-151(a) (West 1999) ........
48
vii
Miss. Code Ann., § 43-21-157(8) (West 1999 & Supp. 2005)
48
Mo. Ann. Stat. ~ 211.071 (West 2004 & Supp. 2006) .....
48
Mont. Code Ann. § 41-5-206 (2005) .............
48
Mont. Code Ann. ~46-18-222 (I) (Westlaw 2007) .....
50,66
N.D. Cent. Code ~ 12.1-04-01 (1997) ............
48
N.H. Rev. Stat. Ann. ~628:1(II) (Westlaw 2008) .......
48
N.J. Stat. Ann. 2a:4A-26 (West 1987 & Supp. 2005) .....
48
N.M. Stat. Ann. § 31-21-10 (Supp. 2005) ...........
48
Neb. Rev. Stat. ~ 28-105 ..................
49
Neb. Rev. Stat. ~ 29-2522 .................
49
Neb. Rev. Stat. §~ 43-247, 43-276 .............
49
Neb. Rev. Stat. § 43-276 .................
.. 49
Nev. Rev. Stat. Ann. ~ 194.010 ...............
48
Ohio Rev. Code Ann. ~2152.10(B) (LexisNexis 2002 & Supp. 2005)~ 48
Okla. Stat. Ann. Tit I0, § 7306-I.I(B) (West 1998 & Supp. 2006)48
Pa. Const., Article i, Section 9 ..............
32
R.I
Gen. Laws ~Ii-23-2 ..................
49
R.I
Gen. Laws § 12-19.2-4 (LEXISNexis 2002) ........
49
R.I
Gen. Laws § 12-19-11 .................
49
R.I
Gen. Laws ~ 14-1-7(2002) ...............
49
S.C
Code Ann. § 17-25-45 (2005) ..............
49
S.C Code Ann. ~20-7-7605(6) (Westlaw 2006) ......... 49
Tenn. Code Ann. ~ 37-1-134 (a) (I) (2005)
.......... 49
Tenn. Code Ann. ~§ 39-13-202, 204 (2003)
Tex. Fam. Code Ann. ~ 54.02 ................49
Utah Code Ann. S 78-3a-502(3) (2002) ............49
Va. Code Ann. § 16.1-269.1 (2003 & Supp. 2005) .......49
viii
Vt. Stat. Ann. tit. 33, ~ 5506 (1998) ...........
49
W. Va. Code § 49-5-10 (Michie Supp. 2004) .........
49
W. Va. Code ~ 49-5-I0(e) ..................
49
W. Va. Code ~ 49-5-13(e) (Michie Supp. 2005) ........
49
W. Va. Code ~§61-2-2, 62-3-15 ...............
49
Wash. Rev. Code Ann. ~ 13.040.030 (Westlaw 2006), Wash. Rev. Code
Ann. ~13.040.II0 (Westlaw 2006) ....... 49
Wis. Stat. Ann. ~§ 938.18, 938.183 (West 2000 & Supp. 2005)
49
Wyo. Stat. Ann. ~ 14-6-203(f) (3) (2005) ..........
49
Wyo. Stat. Ann. § 14-6-237 (2005) .............
49
MISCELLANEOUS
De la Vega, C. and Brown, J., "Can a United States Treaty
Reservation Provide a Sanctuary for the Juvenile Death
Penalty?" 32 U.S.F.L. Rev. 735, 759-762 (1998)
58
Report, Human Rights Watch, The Rest of Their Lives: Life Without
Parole for Child Offenders in the United States, Table
5 at 35 .................... 51
18 PaIC.S.A. ~ 308 .....................
35
18 Pa.C.S.Ao ~iI02 .....................
45
18 Pa.C.S.A. ~§ 1102, 9711 (West 1998 & Supp. 2005), 61 Pa.C.S.A.
~ 331.21 (West 1999 & Supp. 2005) ....... 49
18 Pa. C.S.A. ~ 1102 ....................
65
39 U.N. GAOR Supp .....................
57
42 Pa. C.S.A. §74~2. II ...................
1
42 Pa.C.S.A. ~ 6302 (Westlaw 2006) ............
49
44 U.N. GAOR Supp .....................
59
660 U.N.T.S. 195 ......................
58
705 Ill. Comp. Stato Ann. 405/5-130(4) (a) (Westlaw 2006)
48
999 U.N.T.S. 171 ......................
56
ix
C.R.S.A. section 17-22.5-104 (IV) (2006) ..........
48
C.R.S.A. section 17-22.5-104 (IV) (2006) ..........
50
Haw. Rev. Stat.Ann. ~ 571-22 (LexisNexis 2005 & Supp. 2005)
49
Idaho Code Ann. ~ 18-4004 (Michie 2004) ..........
49
Idaho Code Ann. ~ 20-509(3)-(4) (Michie 2004) .......
49
Idaho Code Ann. ~§ 20-508, 20-509 (Michie 2004) ......
49
Jud. Proc. ~ 3-8A-06(West 2002 & Supp. 2005) ........
49
La. Child. Code Ann. art. 305 (West 2004) .........
48
M.C.L.A. ~ 769.1 ......................
49
M.C.L.A. ~750.316 .....................
49
M.C.L.A. §791.234 (6) ....................
49
M.C.L.A. § 791.244 .....................
49
Md. Code Ann., Crim. Law ~§ 2-202, 2-203, 2-304 (Michie 2002)
49
N.Y. McKinney’s Penal Law §~125.25(5),125.26,125.27
. .
. .
49
N.Y. McKinney’s Penal Law § 490.25 and 490.25(d) ......
49
PA.CONST., Art. I, §~ 6, 9 .................
18
Pa. CONST. Art. I, ~9 .................
34,39,40
S.D. Codified Laws ~26-ii-3.1 (2004) ............
49
Tex. Penal Code §8.07 ...................
49
U.S.CONST., Amend. V, XIV
................. 17
U.S.CONST., Amend. VI, XIV
................. 18
............... 28,32
................. 34
U.S.CONST., Amend. V, VI, XIV ...............35
U.S.CONST., Amend. VI, XIV .................39
x
U.S.CONST., Amend. VIII ..................46
U.S.CONST., Amend. XIV ...................46
U.S.CONST., Article VI, Clause 2 ..............55
xi
I.
STATEMENT OF JURISDICTION
This Court’s jurisdiction to hear an appeal from the judgment
of sentence of the Philadelphia Court of Common Pleas is
established by Section 2 of the Judiciary Act of 1976, P.L. 586,
No. 142, 92, 42 Pa. C.S.A. 9742.
1
II.
STATEMENT OF SCOPE AND STANDARD OF REVIEW
Eight issues are presented in the instant appeal. Five issues
involve a legal conclusion: the propriety of the denial of the
motion to suppress statements, the failure to exclude for cause a
juror who declared that whoever killed the decedent in this case
was guilty of an intentiona! murder, failure to grant a severance
where the statement of a non-testifying co-defendant was admitted
into evidence, failure discharge the death qualified jury and grant
a mistrial when because of the United States Supreme Court’s
decision in Roper v. Simmons the case became non-capital and
whether in light of Roper v. Simmons, the Pennsylvania life without
parole statute could constitutionally be applied to a juvenile.
Therefore, this Court has a plenary standard of review.
Three issues involve the admission or exclusion of evidence:
the barring of a defense expert, the admission of gruesome
photographs and the overruling of defense objections to the
prosecutor’s closing argument. This Court reviews these errors
under an ~abuse of discretion" standard.
The scope of review is the entire record.
llI.
STATEMENT OF THE QUESTIONS INVOLVED
Was it not error to admit Eddie Batzig’s statement into
evidence where the testimony at the motion to suppress established
that his statement was the result of custodial interrogation not
preceded by Miranda?
Was it not error to fail to excuse for cause a prospective
juror who admitted that he had formed a fixed opinion that the
instant crime was first degree murder?
Was it not error to deny severance where the statement of a
nontestifying co-defendant was introduced into evidence?
Was it not improper for Eddie Batzig’s guilt to be determined
by a death qualified jury and tO exclude from service qualified
jurors where, because of Roper v. Simmons, neither Eddie Batzig or
his co-defendants were eligible to be sentenced to death?
Was it not improper to exclude from testifying Eddie Batzig’s
expert witness where her opinion was that because of voluntary
intoxication and drug usage he was guilty of third degree murder?
Was it not improper to admit gruesome photographs of the
victim’s mangled body where the inflammatory nature of the
photographs outweighed their probative value?
Did not the prosecutor improperly vouch for his witness’
credibility in his closing argument?
Is it not unconstitutional to sentence a juvenile to life
imprisonment without the possibility of parole?
3
IV.
STATEMENT OF THE CASE
A. Procedural History
Appellant, Eddie Batzig, was arrested on June 2, 2003, and
charged with the murder of Jason Sweeney, as contained in CP-51-CR0613891-2003. He went to trial before the Honorable Renee Caldwell
Hughes of the Philadelphia County Court of Common Pleas and a jury.
He was found guilty on March 9, 2005, of first degree murder,
robbery, conspiracy and possession of an instrument of crime (N.T.
3/9/05, 159-160).I
He was sentenced on May 6, 2005, to life
imprisonment without the possibility of parole for murder, 10-20
years for robbery to be served consecutively, 10-20 years for
conspiracy to be served consecutively and 2½ to 5 years for
possessing instruments of crime to be served consecutively (N.T.
5/6/05, 49). A timely notice of appeal was filed on June 3, 2005.
A copy of the trial court’s opinion is attached as Exhibit
"A". A copy of Eddie .Batzig’s timely Preliminary Statement of
Matters Complained of on Appeal is attached as Exhibit "B". A copy
of the Revised Preliminary Statement of Matters is attached as
Exhibit ~C". A copy of the tria! court’s order accepting both
statements as timely filed is attached as Exhibit ~D".
The notes of testimony are referenced by the date of the
proceeding and page. ~A" and "B" refer to multiple hearings on the
same day. As the court reporters did not distinguish between the
multiple hearings on the same day, counsel has designated as "A"
the first hearing that day; "B" is the second.
B.
Pre-trial motions
The Honorable Benjamin Lerner denied the pre-trial motion to
sever Eddie Batzig’s case from co-defendant Dominic Coia (N.T.
4/23/04, 42; 6/25/04, 6).
Judge Hughes denied Eddie Batzig’s motion to suppress his
statement to the police even though she found that, prior to the
giving of Miranda warnings, the police confronted him with the fact
that another person had implicated him in Jason Sweeney’s murder
knowing full well that an incriminating response would be elicited
(N.T. 12/20/04, 102). Judge Hughes concluded that the giving of
Miranda warnings after the statement made the statement voluntary.
C. Tria!
Even though the Commonwealth did not seek the death penalty
against sixteen year old Eddie Batzig and Nicholas Coia, a death
qualified jury was selected because prosecutors were seeking the
death penalty against seventeen year old Dominic Coia. The very
first prospective juror questioned indicated that because of pretrial publicity he had formed the opinion that ~four kids" had
committed an intentional killing in this case; he just did not know
if the defendants on trial were the four responsible (N.T. 2/15/05,
94-96).
A challenge for cause was denied and a peremptory
challenge was exercised against this juror (N.T. 2/15/05, ii0,
117) .
Ultimately, a death qualified jury was selected; the first
witness testified on February 28, 2005. The very next day the
United States Supreme Court Held that it was unconstitutiona! to
5
Sentence a juvenile to death. On March 2, 2005, defense counsel
moved for a mistria! because the instant case was no longer
capital. Judge Hughes denied this motion (N.T. 3/2/05 "B", 127).
The most critical Commonwealth witness was Justina Morley, an
alleged co-conspirator in Jason Sweeney’s murder. She testified
that the plan was for her to lure Jason Sweeney to an isolated area
with the promise of sex and then Dominic Coia, Nicholas Coia and
Eddie Batzig were to murder him and take his money (N.T. 3/1/05
"A", 112-116). She did lure Jason Sweeney and testified she was
present when Dominic Coia, Nicholas Coia and Eddie Batzig beat him
to death with a hammer, a hatchet and rocks (N.T. 3/1/05 ~A", 188200).
They went through his pockets and took his money (N.T.
3/1/05 ~A", 213-215; 3/1/05 ~B", 13).
In exchange for her
testimony, Justina.Morley pled guilty to third degree murder (N.T.
3/1/05 "B", 50-51).
Numerous witnesses testified on behalf of the Commonwealth
regarding the police investigation, the finding of Jason Sweeney’s
body, the statements made to the police by Dominic Coia and Eddie
Batzig. Judge Hughes barred a defense expert from testifying that
Eddie Batzig told her that on the day in question he had used drugs
and alcohol and that, based upon her expert opinion, he was unable
to form the specific intent to kill (N.T. 3/7/05, 5-15).
D. Post-trial motions
On May 4, 2005, defense counsel filed a motion challenging the
constitutionality of the juvenile life without parole sentence.
6
Judge Hughes denied the motion on May 6, 2005, and the matter
proceeded to sentencing (N.T. 5/6/05, 8-9).
V.
SUMMARY OF ARGUMENT
The suppression judge heard from the police detective at the
motion to suppress. She found as a factual matter that when he
confronted Eddie Batzig with the fact that information established
that he was involved in the instant murder, he knew that an
incriminated response was likely. Hence, Miranda warnings should
have given prior to that confrontation.
A prospective juror indicated that he knew about the instant
crime and thought that whoever had committed it was guilty of first
degree murder. However, he was not sure if the defendants where
the ones that had committed the crime. It was error to deny a.
challenge for cause because the jury must be able to evaluate two
questions, what crime was committed and who committed it, and this
juror admitted he could only consider the second of the two.
The right of confrontation requires that a defendant be able
to confront the witnesses against him. The statement of a nontestifying co-defendant was admitted in a joint trial.
Eddie
Batzig could not confront this witness. Severance should have been
granted.
A capital jury was selected because the Commonwealth sought
the death penalty against Eddie Batzig’s juvenile co-defendant.
However, the day after the trial began the United States Supreme
Court in Roper v. Simmons struck down the juvenile death penalty.
A new jury should have been selected.
The trial judge excluded a defense expert that would have
testified that because of the use of drugs and alcohol, Eddie
8
Batzig could not have formed the specific intent to kill. The
judge erroneously excluded this expert because there was no trial
evidence as to Eddie Batzig’s drug/alcohol use. However, Eddie
Batzig’s admissions to his expert could have appropriately served
as the basis for the expert’s opinion.
Inflammatory photographs of the decedent’s mangled body were
admitted into evidence. They should have been excluded because
their inflammatory nature outweighed the probative value.
In closing to the jury the prosecutor repeatedly emphasized
that he had to make a deal with a co-defendant in order to present
her testimony so that the jury could learn what really happened.
This was improper vouching for the credibility of his witness.
The United States Supreme Court in Roper v. Simmons determined
that it was unconstitutional to execute juveniles.
Their
reasoning, that studies show that juveniles can be rehabilitated,
and that their brains are yet not fully formed, applies similarly
to sentencing juveniles to imprisonment for life without the
possibility of parole. This Court should strike down a sentence of
life without parole for juveniles.
9
VI.
I.
ARGUMENT
IT WAS ERROR TO DENY THE MOTION TO SUPPRESS WHERE THE
SUPPRESSION JUDGE FOUND THAT THE OFFICER’S STATEMENT DURING
QUESTIONING WAS LIKELY TO ELICIT AN INCRIMINATING RESPONSE AND THE
OFFICER HAD NOT PRECEDED THAT STATEMENT WITH MIRANDA WARNINGS.
The law is clear that when a person is in custody, any police
interrogation must be preceded by Miranda warnings in order to
establish that the statements were voluntarily given and the
person’s constitutiona! rights were knowingly waived. Here Eddie
Batzig went voluntarily to the police station in order to assist
the police in their investigation. However, after their initial
conversation, the police uncovered evidence directly implicating
him in the murder of Jason Sweeney.
The police went to
reinterrogate him and, without giving him Miranda. warnings,
disclosed to him the new incriminating evidence. The judge found
that the police disclosure of this incriminating evidence was
likely to induce an incriminating response. It did. As Miranda
warnings were required to ~have been given and were not, .~the
resulting statement should have been suppressed.
The motion to suppress was heard before the Honorable Renee
Caldwell Hughes on December 16 and 20, 2004. At that hearing
Detective Richard Reinhold testified that he and his partner were
conducting a homicide investigation following the discovery of the
Jason Sweeney’s body (N.T. 12/16/04, 23). They learned that Jason
Sweeney was supposed to have been at a party earlier with his
friends: Justina Morley, Eddie Batzig, Dominic Coia and Nicky Coia
i0
(N.T. 12/16/04, 25-26). The detectives went to speak with Eddie
Batzig on June 2, 2003 (N.T. 12/16/04, 26). They asked if he would
be willing to speak with the detectives at Homicide Headquarters
(N.T. 12/16/04, 29). They told Eddie’s mother that she was welcome
to come with them and sought her permission to speak to her son
(N.T. 12/16/04, 29-30).
Mrs. Batzig gave them permission, but
could not come with the detectives because she had to go to work
(N.T.. 12/16/04, 29-30; 12/20/04, 11-12).
Eddie Batzig took the detectives to the home of Nicky Coia
where the detectives spoke with Nicky’s father (N.T. 12/16/04, 31).
Nicky Coia’s father came with Nicky to Homicide Headquarters (N.T.
i2/16/04, 31). Detective Reinhold spoke with Eddie Batzig in an
interview room (N.T. 12/16/04, 34). After obtaining biographical
information, the detective asked Eddie about Jason Sweeney (N.T.
12/16/04, 38-39). He did not give him Miranda warnings because he
considered Eddie to be a witness and not a suspect (N.T. 12/16/04,
42-43; 12/20/04, 13). Eddie said that he had last spoken to Jason
Sweeney on May 30, 2003, at 4 p.m. (N.T. 12/16/04, 42).
Detective Reinhold left the interview room and, at about 11:30
p.m., spoke to Detective Rossiter (N.T. 12/16/04, 45). Detective
Rossiter had been speaking to Justina Morley and he told Detective
Reinhold that Justina Morley had just told him that Eddie Batzig
had murdered Jason Sweeney and that she had been a witness to that
murder (N.T. 12/16/0~, 45; 12/20/04, 16-17). Detective Reinhold
then personally spoke to Justina Morley; she told the detective
that Eddie had murdered Jason Sweeney by striking him on the head
ii
with a hatchet or hammer (N.T. 12/20/04, 19). Detective Reinhold
made no efforts at that point to contact Eddie’s mother (N.T.
12/20/04, 34-35).
Based upon the new information that Eddie had murdered Jason
Sweeney, Detective Reinhold returned to the interview room ~to
confront him with the facts and warn him of his rights" (N.T.
12/20/04, 24).
The detective "explained to him that we were
interviewing other people that were friends of his that were there
at that party that he spoke to us about, and now the information
was that he was involved in the murder of Jason Sweeney" (N.T.
12/20/04, 21). The following then occurred:
A (Detective Reinhold): I didn’t tell him it
was Justina Morley that was telling me, but
about what she said, yes.
Q (Defense counsel): The particulars that he
was involved as an active participant in this
murder, right?
A: Yes, sir.
Q: Al! right. He then after you said that to
him, he then told you that he was involved,
right?
A: Yes, sir.
Q: All right. And then you warned him of his
rights, of his Miranda rights.
Would that be
fair to say?
A: Yes, sir.
Q: And I have the chronology correct.
right?
Am I
A: Yes, sir.
Q: Al! right. Why didn’t you warn him of his
rights before telling him that there was
12
information that suggested that he was an
active participant in this murder?
A: My intention was to inform. He had already
made a statement that he wasn’t involved.
Justina
Morley
in
her
statement
was
implicating him, but for al! I knew that she
was just telling us that, trying to cover up
for somebody else. I didn’t know if what she
was saying was the truth or not. But when I
went in, I was intending to warn him of his
rights but I wanted to inform him of the facts
and find out, let him know where we were going
from then.
I was going to warn him of his
rights. It was al! part of my leading into
that that I was telling him about what I had
just found out, when he blurted out that he
had not told the truth and he wanted to tell
me what happened.
N.T. 12/20/04, 25-26.
The detective agreed that Eddie then made some "inculpatory
statement about his involvement in the murder" (N.T. 12/20/04, 27).
See also N.T. 12/16/04, 46, 60; 12/20/04, 31. It was only after
Eddie made that incriminating statement that the detective finally
gave him Miranda warnings (N.T. 12/20/04, 26, 27). Eddie admitted
that he, Dominic Coia and Nicky Coia had beaten Jason Sweeney to
death and robbed him (N.T. 12/16/04, 48).
After taking an incriminating oral statement, Detective
Reinhold left the room to tell his lieutenant to contact Eddie’s
mother (N.T. 12/16/04, 49). Detective Reinhold returned and took
an inculpatory written statement (N.T. 12/16/04, 50-52; 59-72).
The detective did let Eddie have a non-private conversation with
his mother during the taking of the written inculpatory statement
(N.T. 12/16/04, 64-65).
The police then took an inculpatory
videotaped statement from Eddie (N.T. 12/16/04, 77).
13
There were stipulations that Eddie Batzig had been previously
arrested on three occasions and had not made statements to the
police (N.T. 12/20/04, 60-62; 63-65; 65-67).
Judge Hughes denied the motion to suppress. Although Eddie
Batzig originally went to the police station to be questioned as a
witness, his status changed when Detective Reinhold learned
information that identified Eddie as a murderer. When Detective
Reinhold returned to the interrogation room to question Eddie, he
did so with the explicit purpose of confronting him with the
incriminating evidence and then giving him Miranda warnings.
However, after being confronted with the fact that others said he
had committed the murder, Eddie admitted that he had lied to the
detective earlier when protesting his innocence and now admitted
that he was involved in the murder, of Jason Sweeney (N.T. 12/16/04,
60). Judge Hughes found as a matter of fact that when Detective
Reinhold returned to the interview room after learning from Justina
Morley that Eddie had committed the murder and told Eddie that
others had implicated him in the murder, Detective Reinhold ~knew
a response would be elicited" (N.T. 12/20/04, 102). The question
is whether Miranda warnings should have preceded Detective
Reinhold’s recitation of the incriminating facts. Judge Hughes
determined that suppression was inappropriate because the
inculpatory statement was "completely voluntary" (N.T. 12/20/04,
103). However, case law demonstrates that voluntariness is the
wrong question when dealing with a statement taken in the absence
of Miranda warnings.
14
The United States Supreme Court in Missouri v. Seibert, 542
U.S. 600 (2004) (plurality)2, held that the failure to give Miranda
warnings prior to custodial questioning generally requires
suppression of any resulting confession. In Seibert a custodial
defendant was initially questioned by a police officer in the
absence of Miranda warnings.
After receiving an inculpatory
response the police officer gave the defendant Miranda warnings.
In striking down the question-first, Miranda-second interrogation,
the Supreme Court found significant that the second questioning
took place at the same location with the same officer soon after
the first questioning and covered the same subject matter.
The judge in her ~1925 opinion did not discuss Seibert, though
it was discussed at the time of the motion to suppress (N.T.
12/20/04, 99-100).
Instead, the judge relied exclusively upon
Commonwealth v. DeJesus, 567 Pa. 415, 787 A.2d 394 (2001). Opinion
of Hughes, J. at II. Three facts undercut reliance upon DeJesus.
First, DeJesus was decided before Seibert and, hence, could
not have been guided by its authority. Moreover, DeJesus relied~
heavily upon Oreqon v. Elstad, 470 U.S. 298 (1985), which was
distinguished by Seibert in critical ways relevant to the instant
case. For example, the second Mirandaized statement in Elstad was
2
In his concurrence, Justice Kennedy suggested that an
inculpatory statement might be admissible if there had been a
substantial break between the prewarned statement and the Miranda
warned statement such that the defendant would understand that the
~interrogation has taken a new turn." Id. at 622. Here there was
no break in time as the Miranda warnings occurred immediately after
the unwarned interrogation so the instant Miranda warned statement
would be inadmissible under Justice Kennedy’s test or that of the
plurality.
15
held to be admissible because, as Seibert, noted, the second
questioning took place much later in a different location. The
instant facts a more like Seibert than Elstad where, as was true in
Seibert, the second warned questioning took place in the same
location immediately after the initial unwarned questioning.
Second, the judge in her opinion relied exclusively upon trial
testimony for its record support. Opinion of Hughes, J. at I0-II.
Inexplicably, the judge never mentioned the testimony elicited at
the motion to suppress.
Third, the judge at the motion to suppress made the critical
factual determination that Detective Reinhold had intentionally
questioned Eddie Batzig without giving him Miranda warnings knowing
full wel! that an incriminating response would be evoked. Judge
Hughes found:
With respect to whether Detective Reinhold
knew that telling Mr. Batzig that a witness
had placed him at the scene of the crime and
had possibly implicated him in the crime,
yeah, he’s been a detective for twenty-two
years. He knew a response would be elicited.
N.T. 12/20/04, 101-102.
While Judge Hughes took solace in the fact that the detective
gave Eddie Batzig Miranda warnings immediately after his
questioning elicited an incriminating response (N.T. 12/20/04,
102), case law is not as forgiving where the police officer
intentionally engaged in questioning without giving the mandated
Miranda warnings.
The United States Supreme Court in Seibert
specifically held that "it is likely that if the interrogators
employ the technique of withholding warnings until after
16
interrogation succeeds in eliciting a confession, the warnings will
be ineffective in preparing the suspect for successive
interrogation, close in time and similar in content." Id. at 613.
That is precisely what occurred here. The Miranda warnings came
too late to save the resulting confession.
As a result, the
instant confession was obtained in violation of due process.
U.S.CONST., Amend. V, XIV.
The experienced homicide detective here went to confront Eddie
Batzig with information that established he was involved in a
murder. The detective did not preface that confrontation with the
required Miranda warnings. Judge Hughes found as a factual matter
that the detective knew that an incriminating response would likely
be forthcoming when he confronted Eddie Batzig with the information
that implicated him in the murder. The failure to provide Eddie
Batzig with the required MirandH warnings prior to this questioning
tainted his confession and requires that this Court reverse Eddie
Batzig’s convictions and remand for a new tria!.
2. EDDIE BATZIG WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT OF EQUAL
PROTECTION AND DUE PROCESS WHERE THE TRIAL COURT REFUSED TO EXCUSE
FOR CAUSE A PROSPECTIVE JUROR WITH A FIXED OPINION THAT WHOEVER
COMMITTED THIS KILLING WAS GUILTY OF FIRST DEGREE MURDER.
As a general rule all trials require the fact finder to
resolve two questions: first, what crime was committed, if any; and
second, was the defendant the one that committed the crime. Here
a prospective juror indicated that he had heard and read about the
17
instant case and candidly admitted that he had a fixed opinion
about what crime had been committed, premeditated murder, and that
it was committed by four people. However, he did not know if the
defendants on tria! had been the ones that had committed the first
degree murder. A fair trial required a juror to evaluate both
questions and this juror admitted he could only consider the
second. Defense counsel was forced to use a peremptory challenge
when the.trial court refused to excuse this juror for cause. This
error requires that this Court reverse the instant convictions and
remand for a new trial.
The United States and Pennsylvania Constitutions guarantee a
person accused of a crime the right to trial by jury. U.S~CONST.,
Amend. VI, XIV; PA.CONST., Art. I, ~§6, 9. Integral to this right
is the requirement that the jury be composed of fair and impartia!
jurors. Equal protection and due process demand no less. In order
to effectuate those constitutional rights, potential jurors with a
fixed opinion or who cannot be fair and impartia! must be excused
"for cause." The test for determining whether a prospective juror
should be disqualified is whether s/he is willing and able to
eliminate the influence of any biases or pre-conceived notions and
render a verdict solely according to the evidence. Commonwealth v.
D_y_9, 765 A.2d 1123 (Pa. Super. 2000); Commonwealth v. Koehler, 558
Pa. 334, 737 A.2d 225 (1999). Jurors should be disqualified for
cause when they do not have the ability or willingness to eliminate
the influences under which they are operating and, therefore,
cannot render a verdict according to the evidence. Commonwealth v.
18
Robinson, 581 Pa. 154, 864 A.2d 460, 489 (2004); Commonwealth v.
Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422 (1995). Where, as
here, the defense exhausts its peremptory challenges it cannot be
harmless error to overrule a valid challenge for cause, even if the
juror is actually excluded by a peremptory challenge. Commonwealth
v. InHber, 516 Pa. 2, 531 A.2d ii01 (1987); Commonwealth v. Jones,
477 Pa. 164, 383 A.2d 874 (1978); Commonwealth v. Impellizzeri, 443
Pa. Super. 296, 661 A.2d 422 (1995).
The questioning of Venireperson Stavola revealed that he had
learned of this case through the media (N.T. 2/15/05, 82). Based
upon what he had heard and read he had a fixed opinion that there
were four people involved, that they had killed the decedent and
they were guilty of premeditated first degree murder. He candidly
admitted that he had already formed an opinion that whoever
committed this crime was guilty (N.T. 2/15/05, 82-84) :
THE VENIREMAN: . . . All the news in the last
years that it has been publicized, the way it
was described in the paper, there has been no
one to actually come out and say what was
done. It was all hearsay. It was despicable,
disgusting, and kids can do it.
And my
opinion was that there is probably four kids
that did it.
THE COURT: But then it sounds like you made up
your mind.
THE VENIREMAN: I haven’t heard the evidence.
THE COURT: Okay.
THE VENIREMAN: I mean, Your Honor, it is not
like watching a TV show. Everybody knows what
the ending is going to be. This is real life.
It is possible for kids to do it.
19
THE COURT: Okay. Fair enough. So, what you
are saying - let me ask this question: Are you
saying that anyone who committed this crime,
that anyone who would have done the acts that
the Commonwealth seeks to prove, would be
guilty?
THE VENIREMAN: Yes.
THE COURT: Have you made up your mind as to
whether these particular citizens who are on
trial before you committed the crime?
THE VENIREMAN: No.
THE COURT: So you are open-minded as to
whether these particular citizens committed
this crime?
THE VENIREMAN: That’s true, Your Honor.
N.T. 2/15/05, 82-84.
He told Judge Hughes and the prosecutor that he could put
aside the media coverage and focus only on the evidence introduced
at trial (N.T. 2/15/05, 84, 92, 93). However, when questioned by
defense counsel, he reiterated that before hearing any evidence he
had formed a fixed opinion as to what crimes had occurred:
MR. SCHWARTZ: When discussing your knowledge
of the incident, you mentioned that the crime
as reported was despicable and disgusting, and
we appreciate your being honest about that.
You also said there are probably four kids who
did it. You just don’t know if it is these
four kids; am I right?
THE VENIREMAN: I don’t know.
MR. SCHWARTZ: Okay. But, you described the
incident that you heard about as - I’m using
your words, young gir! lured a boy to an area,
three other boys murdered him. That is your
understanding of the incident.
THE VENIREMAN: Yes.
2O
MR. SCHWARTZ: Right. And your perception of
the incident is that - is that four people
premeditated a deliberate murder; am I right
about that.
THE VENIREMAN: Yes.
THE COURT: Okay. So that regardless of who
they were, if those four people in your mind
are guilty of a deliberate premeditated
murder; would that be fair?
THE VENIREMAN: That is fair to say, yes.
MR. SCHWARTZ: All right. You just don’t know
if these are the right four guys.
THE VENIREMAN: I don’t know if they are the
right four.
N.T. 2/15/05, 94-96.
Defense counse! for Nicholas Coia attempted to follow-up on
the juror’s fixed opinion that had been identified by counsel for
Eddie Batzig.
However, the judge sustained the prosecutor’s
objections to his questions ("As to the individuals who are
involved in this, whoever they may be, you have formed a fixed
opinion; would that be fair to say?"
~Well, did you form an
opinion at that time [when reading in the newspapers about the
crime and watching television coverage] that those people, whoever
they were, were guilty of something?") (N.T. 2/15/05, 97, 98).
Defense counse!’s request that the prospective juror be
excused for cause was denied (N.T. 2/15/05, Ii0). While defense
counsel explained that the juror had an opinion that the act was
premeditated and deliberate (N.T. 2/15/05, 108), the trial judge
concluded that the juror’s willingness to follow the law was
sufficient (N.T. 2/15/05, 108-110). While counsel for Dominic Coia
21
peremptorily struck this juror (N.T. 2/15/05, ii0), counse! for
Eddie Batzig indicated that he would have struck this juror had not
co-counsel done so (N.T. 2/15/05, 117).
Ultimately, counsel
exhausted al! his peremptory challenges (N.T. 2/22/05, 369).
While ordinarily the question of whether a juror should have
been struck for cause rests upon the sound discretion of the trial
judge, Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d ii01 (1987),
that deference is inappropriate here. Deference is appropriate
where the credibility of the juror is at issue and a determination
of whether that juror could be impartial requires an assessment
from the juror’s answers and demeanor. Commonwealth v. Robinson,
581 Pa. 154, 864 A.2d 460~. 489 (2004); Commonwealth v.
Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422 (1995); Commonwealth
v. Johnson, 299 Pa. Super. 172, 445 A.2d 509 (1982).
Here,
however, the prospective juror did not make any ambiguous answers
that would require an assessment of the "entire voir dire
transcript." Commonwealth v. Impellizzeri, supra at 427. Rather,
this prospective juror was consistent and clear: while he would
keep an open mind and follow the law, his declaration that four
people committed this crime and were guilty of first degree murder
was consistently and unshakenly expressed.
In fact, defense
counsel’s attempt to give Venireperson Stavola a chance to disavow
his unambiguous, fixed opinion that he thought the four people who
committed this crime were guilty of premeditated murder was
thwarted by the prosecutor’s objections, sustained by the trial
judge (N.T. 2/15/05, 97-98). It is clear that the appropriateness
22
of a challenge for cause cannot be ignored simply because the
prospective juror asserted that s/he would follow the law and be
fair. Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509
(1982).
The trial judge erred by refusing to strike for cause a juror
that consistently expressed his fixed opinion that four people
committed the instant crime and that those four were gui’ity of
premeditated first degree murder.
That this potential juror
explained that he would keep an open mind and listen to the
evidence did not call into question his belief that, before hearing
any evidence, the culprits involved were guilty of first degree
murder. That he was willing to determine if the defendants on
trial were the correct four culprits was not sufficient. He should
have been stricken for cause and the refusal of the trialjudge to
do so requires that this Court reverse Eddie Batzig’s convictions
and remand for a new trial.
3.
THE INTRODUCTION IN A JOINT TRIAL OF THE INCRIMINATORY
STATEMENTS OF A NON-TESTIFYING CO-DEFENDANT DENIED EDDIE BATZIG HIS
CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM.
Eddie Batzig’s pretrial motion to sever his case from that of
his co-defendants was denied. At their joint trial the prosecutor
introduced into evidence the incriminatory statement of Dominic
Coia.
His statement had been redacted so that he implicated
himself in the murder as well as "the other person." However, this
redaction still incriminated Eddie Batzig and, as Dominic Coia did
23
not testify, he was unable to cross-examine his accuser. For this
reason, the admission of this statement violated Eddie Batzig’s
right of confrontation. This Court should reverse his convictions
and remand for a new trial.
Detective Carl Watkins testified that he took a statement from
Dominic Coia (N.T. 3/7/05, 183, 188).
The detective read that
statement to the jury; in it Dominic Coia admitted that he hit
Jason Sweeney with a brick and ~a person" hit him with a hatchet
(N.T. 3/7/05, 202). Dominic Coia’s statement continued:
Me and the other person continued hitting
Sweeney until he was on the ground.
I was
hitting - hitting him with a brick and the
other person was hitting him with the hatchet.
Sweeney w~s trying to get up and run, and
another person hit Sweeney in the head with a
bolder (sic). There was blood pouring out of
Sweeney at this time.
Then it was me and another person on him until
Sweeney died. I was hitting Sweeney with a
hammer now, and the other person was hitting
him with a hatchet. We just kept hitting and
hitting him.
N.T. 3/7/05, 202-203.
Defense counsel had objected on Bruton grounds to Eddie Batzig
being tried with the Coia brothers and filed a written motion to
that effect (N.T. 4/23/04, 8-10; Opinion of Hughes, J. at 6-7).
The motions judge denied his severance motion (N.T. 4/23/04, 42;
6/25/04, 6; Opinion of Hughes, J. at 7). Because of the severance
issue, proposed redactions of Dominic Coia’s and Eddie Batzig’s
statements were given by the prosecutor to the motions judge who
ruled on them (N.T. 4/23/04 7-8; 2/25/05, 253-258).
24
The United States Supreme Court in Bruton v. United States,
391 U.So 123 (1968), analyzed the constitutiona! right of
confrontation implicated here.
There the defendant and co-
defendant were tried together and the co-defendant’s statement was
admitted as evidence against the co-defendant. Though the tria!
court instructed the jury that the statement could only be
considered against the co-defendant3, the United States Supreme
Court found that where the ~powerfully incriminating extrajudicial
statements of a co-defendant" were presented to the jury:
the risk that the jury will not, or cannot,
follow instructions is so great, and the
consequences of failure so vital to the
defendant, that the practical and human
limitations of the jury system cannot be
ignored.
Id. at 135.
The Supreme Court further refined Bruto~ in Richardson v.
Marsh, 481 U.S. 200 (1987). There a nontestifying co-defendant’s
statement was admitted at trial. The statement had been redacted
to omit not only all direct reference to the defendant, but to omit
al! reference to the defendant’s existence. The defendant’s own
testimony revealed that he was present when the circumstances
described in the co-defendant’s statement had occurred. The Court
found that because the co-defendant’s statement could not, under
the circumstances, be deemed as testimony "against" the defendant,
the defendant’s confrontation rights were not violated.
While
3
Similarly, here the trial judge told the jury that
Dominic Coia’s statement should only be considered against him and
that Eddie Batzig’s statement should only be considered against him
(N.T. 3/4/05, 154-155; 3/7/05, 189-190).
25
recognizing the .p6tential prejudice cited in Bruton that the
admission of a co-defendant’s statement could engender for the nondeclarant defendant, and while recognizing the continuing validity
of Bruton, the Court nevertheless stated:
We hold that the Confrontation Clause is not violated by
the admission of a nontestifying co-defendant’s
confession with a proper limiting instruction when, as
here, the confession is redacted to eliminate not only
the defendant’s name, but any reference to his or her
existence.
Id. at 211.
In Gray v. Maryland, 523 U.S. 185 (1998), a co-defendant’s
statement was redacted so that every identifying reference to the
non-declarant defendant was replaced with the word ~deleted" or
~deletion."
The Court found that the statement violated the
defendant’s right to confrontation.
Pennsylvania courts have gone beyond the United States. Supreme
Court to explicitly find that the substitution of the phrase ~the
other guy" for the name of a non-declarant defendant in a codefendant’s statement also satisfies the requirements of Bruton.
den., 535 U.S. 955 (2002); Commonwealth v. Travers, 564 Pa. 362,
768 A.2d 845 (2001); Commonwealth v. Presbury, 445 Pa. Super. 362,
665 A.2d 825 (1995), alloc, den., 544 Pa. 627, 675 A.2d 1246
(1996) .
To justify this application of the law established by Bruton
and its progeny, Pennsylvania Courts often reference the
implication made in Grax that, in the circumstances of that case,
a redacted reference to ~other guys" was sufficient to protect
26
Gray’s rights under the Confrontation Clause. In this regard, our
Courts have generally found that the contextual implication that
may arise (from linkage by other evidence introduced at trial) when
a defendant’s name is replaced by a more neutral moniker (such as
~the other guy") does not rise to the kind of obvious inference
that is violative of a defendant’s right to confrontation. See,
e.g., Commonwealth v. Overby, 570 Pa. 328, 809 A.2d 295 (2002).
However, no Pennsylvania Court has declared that a statement
employing the term ~the other guy" automatically avoids implicating
confrontation rights. Nor could such a per se rule survive under
the present law. GraM, for example, does not simply implicate
cases wherein the statement has blanks substituted for the
defendant’s name. Rather, it implicates cases involving
statements that, despite redaction, obviously
refer directly to someone, often obviously the
defendant, and which involve inferences that a
jury ordinarily could make immediately, even
were the confession the very first item
introduced at tria!.
Gra~, 523 U.S. at 196. Thus, according to Grax, to the extent that
a statement can use the term "the other guy" and still obviously
refer to a particular person, such a statement would nonetheless be
proscribed under Bruton.
Additionally, use of a nontestifying co-defendant’s hearsay
statement is violative of Crawford v. Washinqton, 541 U.S. 36
(2004). In Crawford, the recorded statement of a nontestifying
declarant was admitted against the defendant at trial. The Supreme
Court determined that there was no adequate way to test the
reliability of such a statement, save by of cross-examination, and
27
that admission of the statement violated the defendant’s rights
under the Confrontation Clause. Crawford can not be avoided by the
admission of the co-defendant’s statement in the instant case,
where the unavoidable result of such admission was to condemn the
defendant without recourse to test the veracity of the condemner.
Had Dominic Coia testified at trial, Eddie Batzig would have
had the opportunity for cross-examination. Because of their joint
tria!, Eddie Batzig was deprived of his right of confrontation.
U.S.CONST., Amend. VI, XIV.
This Court should reverse his
convictions and remand for a new trial.
4. WHERE NEITHER EDDIE BATZIG NOR HIS CO-DEFENDANTS WERE ELIGIBLE
TO BE SENTENCED TO DEATH IT WAS ERROR FOR HIS GUILT TO BE
DETERMINED BY A DEATH QUALIFIED JURY AND TO EXCLUDE FROM SERVICE
JURORS QUALIFIED TO SIT IN A NON-CAPITAL ~Y TRIAL.
The Commonwealth determined that it was inappropriate to seek
the death penalty against Edward Batzig and Nicholas Coia.
However, a death qualified jury was selected as they were seeking
the death penalty against Dominic Coia. On March i, 2005, the day
after the first witness had testified at their joint trial, the
United States Supreme Court held in Roper v. Simmons, 543 U.S. 551
(2005), that it was unconstitutional to sentence a juvenile to
death.
Counsel for all three juveniles moved for a mistrial
because it was improper to have a death qualified jury where none
of them could be sentenced to death. Even though a death sentence
was not an option and numerous jurors qualified to sit in a non28
capital case had been excluded from this jury, the trial judge
denied the mistrial motion. As it was improper to death qualify a
jury for a non-capital case, this Court should reverse Eddie
Batzig’s convictions and should remand for a new jury trial.
The Commonwealth decided to not seek the death penalty against
Eddie Batzig and Nicholas Coia (N.T. 2/15/05, 8-9; Opinion of
Hughes, J. at 5, 14-15). However, because the Commonwealth sought
the death penalty against their co-defendant, Dominic Coia,
seventeen at the time of the crime, a capital jury was selected in
their joint trial (N.T. 2/15/05, 8-9; Opinion of Hughes, J. at 5)4
In the process of selecting that capital jury, numerous jurors who
would have been eligible to sit on a non-capital jury were excused
because of their views on the death penalty. On February 15, 2005,
ten potential jurors out of a panel of 60 were excused because of
their views on the death penalty (N.T. 2/15/05, 49-50, 65-67;
2/16/05, 147-148). The following day two more from that initial
panel were also excused because of their views on the death penalty
(N.T. 2/16/05, 61, 113). In the next panel seventeen out of 60
were excused (N.T. 2/17/05, 61, 98-99).
In the third panel,
eighteen out of 60 were initially excused because of their views on
the death penalty, with several more excused during questioning
(N.T. 2/18/05, 23; 2/19/07, 73, 112, 345, 375). In the final
pane!, sixteen out of 60 were excused (N.T. 2/23/05, 37). Hence,
The United States Supreme Court in Buchanan v. Kentucky,
483 U.S. 401 (1987) held that it was permissible in a joint trial
to death qualify the defendant’s jury where only a co-defendant
could receive the death penalty.
29
approximately 63 out of 240 (26%) citizens were excused from jury
service because of their views on the death penalty.
This case demonstrates why timing is everything. The parties
opened to the death qualified jury on February 28, 2005, and a
single witness testified that day (N.T. 2/28/05, 34, 92, 104, 110,
132).
The very next day, on March I, 2005, the United States
Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), which,
in barring the juvenile death penalty, rendered improper the
¯ selection of a death qualified jury for Dominic Coia and his codefendants. On March 2, 2005, all three juveniles moved for a
mistrial. Counsel for Dominic Coia moved for a mistria! on two
grounds: first, based upon Ro__Qp_e_~, that a death qualified jury was
improper and, second, that he had opened to the death qualified
jury by conceding that his client was guilty and pleading with them
to not impose death (N.T. 3/2/05, 121). Counsel for Eddie Batzig
joined in the mistrial motion and additionally noted that the
process of death qualification eliminated from service numerous
jurors that were now e’ligible to serve (N.T. 3/2/05, 124)5. Judge
Hughes denied the mistrial motions (N.T. 3/2/05, 127).
The United States Supreme Court held in Smith v. Texas, 311
U.S. 128, 130 (1940), that "[it] is part of the established
5
Eddie Batzig was particularly prejudiced by the opening
argument of counsel for Dominic Coia. Counsel for Coia conceded
that his client was guilty of murder but beseeched the jury to
spare his life (N.T. 2/28/05, 106, 109). This obviously weakened
the efficacy of Eddie Batzig’s defense that Eddie Batzig was not
guilty of first or second degree murder (N.T. 2/28/05, 99). Such
a prejudicial concession by co-counsel would not have occurred in
a non-capital case.
3O
tradition in the use of juries as instruments of public justice
that the jury be a body truly representative of the community."
Unfortunately, to death qualify a jury leads to compromise in these
principles. A death qualified jury is not truly representative of
the community because a large segment of the population has been
excluded, here over a quarter of the citizens called for service.
In addition, a citizen’s right to sit on a jury is improperly
impaired by being excluded. See Batson v. Kentucky, 476 U.S. 79,
87-88 (1986). While these compromises are tolerated by necessity
when death qualifying a jury for a capital case by excluding
potential jurors, Illinois v. Witherspoon, 391 U.S. 510 (1968),
these compromises are not only completely unnecessary, but are
actually harmful in death qualifying a jury for a non-capital case.
Because of the necessity of death qualifying capital juries,
as a society we are forced to tolerate the commonly accepted
assumption that death qualifying juries ~in fact produces juries
somewhat .more ’conviction prone’ than ’non-death qualified’
juries." Lockhart v. McCree, 476 U.S. 162, 173 (1986); Buchanan v.
Kentucky, 483 U.S. 402, 414, n. 16 (1987). As a legal matter the
exclusion of this segment of the population from service in a
capital case is accepted as they cannot follow the judge’s
instructions regarding death as a viable penalty~. However, the
~
While the Supreme Court in Lockhart v. McCree, 476 U.S.
162, 173-177 (1986), and Buchanan v. Kentucky, 483 U.S. 402, 415416 (1987), suggest that the fair cross-section requirement is not
violated by the dismissal of Witherspoon-excludables, that must be
understood within the context of jury section in a capital case
where the exclusion has a legitimate purpose, unlike the instant
(continued...)
31
jurors excluded here on Witherspoon grounds would have been able to
follow the judge’s instructions in a non-capital case such as this.
The Pennsylvania Constitution guarantees that a defendant may
not be convicted "unless by the judgment of his peers." PA.CONST.,
Sec. i, ~9v.
While both the Pennsylvania and United States
Constitutions (U.S.CONST., Amend. VIe, XIV) mandate that a jury be
impartial, the United States Constitution has no parallel to the
additional ~peer" requirement mandated by the Pennsylvania
Constitution. While the Pennsylvania Supreme Court in Commonwealth
v. Kratsas, 564 Pa. 36, 764 A.2d 20, 27 n.5 (2001) (citation
omitted) asserted that Article i, ~9 "has been construed as the
functional equivalent of the due process provision in the United
6(...continued)
case. McCree and Buchanan cannot, therefore, be read as rejecting
the instant cross-section argument.
v
Article I, Section 9 of the Pennsylvania Constitution
reads: "In al! criminal prosecutions the accused hath a right to be
heard by himself and his counsel, to demand the nature and cause of
the accusation against him, to be confronted with the witnesses
against him, to have compulsory process for obtaining witnesses in
his favor, and, in prosecutions by indictment or information, a
speedy public trial by an impartial jury of the vicinage; he cannot
be compelled to give evidence against himself, nor can he be
deprived of his life, liberty or property, unless by the judgment
of his peers or the law of the land."
The 6th Amendment to the United States Constitution reads:
"In all crimina! prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and
district wherein~ the crime shall have been committed; which
district shal! have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense." The 14th Amendment provides
that: "[N]or shall any State deprive any person of life, liberty,
or property, without due process of law."
32
States Constitution," the Pennsylvania Supreme Court did not
consider specifically the ~judgment of his peers" portion of
Article i, ~9 in making that assertion, thereby limiting its
applicability to the instant facts. Moreover, unlike in Kratsas,
here there is a plain reason to interpret the Pennsylvania
Constitution broader than the federal Constitution. The federal
Constitution only protects the impartiality of the jury while the
Pennsylvania Constitution protects not only the impart’iality of the
jury but also mandates the inclusion of a defendant’s peers in that
jury, thereby placing a different and additional emphasis when
dealing with the exclusion of particular jurors.
There is not much case law dealing with the consequences of
improperly death qualifying a jury. In Reed v. Florida, 496 So. 2d
213 (Ct. of Appeals, Florida, 1986) the Court reversed the
conviction and remanded for a new tria! where the jury was
improperly death qualified. The Court found significant the fact
that in death qualifying the jury, a number of what would have been
qualified jurors were excused from service.
The proposition that a jury should not be death qualified in
a non-capita! case finds analogous support in Pennsylvania law. In
Commonwealth v. Buck, 551 Pa. 184, 709 A.2d 892 (1998), the
Pennsylvania Supreme Court held that it was improper for a
prosecutor to designate a case as capital (with, of course, the
obvious consequence that a jury would be death qualified) where
there is no evidence to support any aggravating factor.
The
Supreme Court empowered the judiciary to overrule the prosecutor’s
33
designation of a case as capital in such a situation.
As a
consequence of Roper, the instant case was no longer capital just
as the absence of evidentiary support of aggravating factors would
make non-capital what had been designated as a capital case.
The jury that decided Edward Batzig’s guilt was death
qualified because of the presence of Dominic coia as a codefendant. However, after Roper v. Simmons, the instant case was.
non-capital for all defendants. As a result, jurors were excluded
for no legally acceptable reason. This created a jury that did not
reflect a fair cross-section of the community, improperly deprived
citizens of jury service and created a more conviction prone jury.
U.SoCONST., Amend. VI, XIV; PA.CONST. Art. i, §9.
This Court
should reverse Edward Batzig’s convictions and should remand for a
new trial.
5.
IT WAS ERROR TO PRECLUDE A DEFENSE EXPERT FROM TESTIFYING THAT,
BASED UPON HER INTERVIEWS OF EDDIE BATZIG, IT WAS HER OPINION THAT
BECAUSE OF HIS VOLUNTARY INTOXICATION OR DRUGGED CONDITION HE WAS
GUILTY, AT MOST, OF THIRD DEGREE MURDER.
Voluntary intoxication or a drugged condition can be
introduced to establish that the crime committed was not an
intentional killing but was a lesser degree of murder. Here, a
defense expert interviewed Eddie Batzig on two occasions.
He
admitted to her that at the time of the homicide he was under the
influence of drugs and alcohol. As a result the expert witness
opined that he was incapable to forming the specific intent to
34
kill. While Eddie Batzig had a federal constitutional right to
present this defense, the trial judge precluded it because of her
erroneous belief that there must be evidence in the record to
establish the voluntary use of drugs or alcohol. As this ruling
was legally incorrect and deprived Eddie Batzig of his right to
present a defense, this Court should reverse his convictions and
should remand for a new tria!. U.S. CONST., Amend. V, VI, XIV.
"[A] showing of voluntary intoxication can negate the intent
necessary for a conviction of first-degree murder and reduce the
crime of murder from first to third degree."
Commonwealth v.
Fletcher, 580 Pa. 403, 419, 861 A.2d 898, 907 (2004). ~[E]vidence
of [voluntary] intoxication or [voluntary] drugged condit~±on of the
defendant may be offered by the defendant whenever it is relevant
to reduce murder from a higher degree to a lower degree of murder."
18 Pa.C.S.A. § 308. Of course, Eddie Batzig’s right to present a
defense by negating the intent element of the crime for which he
was charged is constitutionally protected.
Chambers v.
Mississippi, 410 U.S. 284 (1973); U.S.CONST., Amend. V, VI, XIV.
Here, Eddie Batzig had precisely such evidence to present. He
had an expert witness, Dr. Antoinette Kavanaugh.
She had
interviewed him on severa! occasions prior to trial, had been told
by him that he was using drugs and alcohol prior to the crime
involved, and based upon this she had formed the expert opinion
that he was unable to form the specific intent to kill~. In fact,
~
See Report of Dr. Antoinette Kavanaugh, Court’s Exhibit
2B (N.T. 3/7/05, 18).
35
defense counsel opened to the jury with this as a defense (N.T.
2/2s/05, 101-102).
However, Judge Hughes barred Dr. Kavanaugh from testifying.
The basis for her ruling was simple and erroneous. Judge Hughes
posited that Dr. Kavanaugh’s opinion that Eddie Batzig was under
the influence of drugs and alcohol at the time of the crime was
based upon what he had personally told her (N.T. 3/7/05, i0). As
.there was no trial evidence to support voluntary intoxication or
voluntary drugged condition, Dr. Kavanaugh was not permitted to
testify unless Eddie Batzig testified and presented such testimony
(N.T. 3/7/05, Ii; Opinion of Hughes, J. at 18).
It was the defense position, rejected by the tria! judge, that
Dr. Kavanaugh could testify as an expert ~based entirely on what
our client, Eddie Batzig, said to her regarding this incident"
(N.T. 3/7/05, 5). See also 3/8/05, 146. The defense was correct.
Their expert should have been permitted to testify whether or not
the basis for her opinion was admissible as evidence or even
introduced at trial. Pa.R.E. 703.
The Pennsylvania Supreme Court in Commonwealth v. Basemore,
560 Pa. 258, 744 A.2d 717 (2000) dealt with precisely the same
error as that committed by the trial court here. In Basemore, the
PCRA judge, as did the judge here, concluded that the defense
expert’s testimony would have been inadmissible because, in part,
~their diagnoses were based upon information gathered solely from
Basemore and his family."
Id. at 291.
However, it is not
necessary that the expert’s opinion rest upon evidence introduced
36
at tria!. What the defendant told the expert can serve as the
basis for that expert’s opinion even when there is no trial
evidence to support the nontestifying defendant’s statements to the
expert. See also Commonwealth v. Miller, 897 A.2d 1281, 1286 (Pa.
Super., 2006) (expert was permitted to testify as to what the
defendant told him in support of an intoxication/drugged condition
defense).
It is a defense to an intentiona! killing that the defendant
was under the influence of drugs or alcohol to such a degree that
the defendant was unable to form the specific intent to kill. In
such a situation the jury could find the defendant guilty of a
lesser grade of murder. Here, the trial judge unconstitutionally
barred the testimony of a defense expert because there was no
evidence introduced at trial in support of what Eddie Batzig had
told her: that he was under the influence of drugs and alcohol.
The defense expert was not permitted to testify that it was her
expert opinion that because of this drug/alcohol use, Eddie Batzig
was unable to form the specific intent to kil!. This Court should
reverse his convictions and remand for a new trial where the
defense expert will be permitted to testify.
6. THE TRIAL COURT ERRED BY ADMITTING GRUESOME PHOTOGRAPHS OF THE
VICTIM’S MANGLED BODY WHERE THE PHOTOGRAPHS’ INFLAMMATORY NATURE
OUTWEIGHED THEIR PROBATIVE VALUE.
Under Pennsylvania law, a two part test determines the
admissibility of photographs. A judge must first determine if the
37
photographs are inflammatory. If inflammatory they can only be
admitted if their probative value outweighs their inflammatory
impact.
Here, the inflammatory nature of the photographs
outweighed the probative value.
The introduction of these
photographs denied Eddie Batzig his right to due process and a fair
jury trial under Pennsylvania and federal law. This Court should
reverse his convictions and should remand for a new tria!.
At issue here are photographs taken of the beaten victim.
Photographs of a decedent are not per se inadmissible. Well
established law determines their admissibility:
[A]
court must determine whether the
photograph is inflammatory. If not, it may be
admitted if it has relevance and can assist
the jury’s understanding of the facts. If the
photograph is inflammatory, the trial court
must decide whether or not the photographs are
of such essential evidentiary value that their
need clearly outweighs the likelihood of
inflaming the minds and passions of the
jurors. If an inflammatory photograph is
merely cumulative of other evidence, it will
not be deemed admissible.
Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 216 (1997)
(citing Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 137374 (1991)). See also Commonwealth v. Robinson, 581 Pa. 154, 864
A.2d 460, 501-502 (2004).
Here, Judge Hughes correctly recognized that a two part test
determined the admissibility of the photographs (N.T. 2/14/05, 55).
There was also a video taken of the body. Because the video was
duplicative of the photographs, Judge Hughes ruled that the
prosecutor could show the jury either the photographs or the video,
but not both (N. T. 2/28/05, 156; 3/1/05, 68). The attorneys for
38
all three defendants argued for the exclusion of the photographs
(N.T. 2/14/05, 37, 55-64; 2/25/05, 151-154; 195-200). Judge Hughes
examined the photographs involved and determined which could be
used by the prosecutor (N.T. 3/1/05, 68, 3/2/05 ~A", 15-16).
Reversing her pre-trial ruling, Judge Hughes permitted the
photographs to be shown to the jury (N.T. 3/3/05, 267) as well as
the video of the decedent’s body (N.T. 3/4/05, 46-54).
The admission of the gruesome photographs, especially when
coupled with the videotape of the body, violated not only Judge
Hughes own pre-trial ruling that the prosecutor could use only one
method of showing the body to the jury, it violated Eddie Batzig’s
federa! and state right to a due process and a fair jury tria!.
U.S.CONSTo, Amend. VI, XIV; Kuntzelman v. Black, 774 F.2d 291, 292
(8th Cir. 1985) (per curiam) 1°; PA.CONST., Art. i, §9.
Over
objection, visual images of the victim’s body were repeatedly
presented to the jury-not only with the bloody crime scene
photographs and crime scene video, but also with the autopsy
photographs (N.T. 3/7/05, 76, 107-121, 136-137).
Judge Hughes explains in her written opinion that, while there
was a ~potential prejudicia! effect [that] the photos may have had
upon the jury," the probative value of the visual depictions ~to
i0
Kuntzelman found that the introduction in a state trial
violated the defendant’s constitutional rights to due process and
a fair trial, citing Manninq-El v. Wyrick, 738 F.2d 321, 323 (8th
Cir.), cert. denied, 469 U.S. 919 (1984) : "that the asserted error
was so conspicuously prejudicial or of such magnitude that it
fatally infected the trial and deprived him of fundamental
fairness." See alsq Spears v. Mullin, 343 F.3d 1215 (I0th Cir.
2003) .
39
demonstrate that the appellant possessed the specific intent to
kill" outweighed that prejudice. Opinion of Hughes, J. at 14.
Judge Hughes correctly noted that the jury was instructed that the
crime scene pictures, the crime scene video and the autopsy picture
were admitted to show the nature of the wounds and the conditions
on the scene and that the jury was admonished to not let the
depictions stir up their emotions (N.T. 3/9/05, 91-92); however,
that admonishment was ineffective given the strong visceral
revulsion attendant to anyone viewing the visual images.
There was certainly some probative value to the visual
depictions introduced by the prosecutor. That fact cannot overcome
that the plainly inflammatory nature of the depictions overwhelmed
that probative value. As a result of the introduction of these
images, Eddie Batzig was deprived of his right to due process and
a fair trial. U.S.CONST., Amend. VI, XIV; PA.CONST., Art. I, ~9.
7. THE PROSECUTOR IN CLOSING TO THE JURY UNFAIRLY VOUCHED FOR THE
CREDIBILITY OF THE" COMMONWEALTH’S EYEWITNESS, ATTACKED DEFENSE
COUNSEL AND IMPROPERLY EXPRESSED HIS OWN PERSONAL OPINION.
There are significant limitations as to what the prosecutor
may argue in closing to a jury. The prosecutor is not allowed to
express his/her personal opinion. The prosecutor may not vouch for
the credibility of witnesses.
The prosecutor may not attack
defense counsel. Here the prosecutor violated these rules. This
Court should reverse Eddie Batzig’s convictions and should remand
for a new trial.
4O
The reasons for limits on prosecutorial argument are clear:
"[L]imitations are needed to check the possibility that jurors will
give undue weight to the arguments of the prosecutor."
Commonwealth v. Cherry, 474 Pa. 295, 303, 378 A.2d 800, 804 (1977).
Cherry quoted the Commentary to Section 5.8, ABA Project on
Standards for Criminal Justice:
Prosecutorial conduct in argument is a matter
of special concern because of the possibility
that the jury will give special weight to the
prosecutor’s arguments, not only because of
the prestige associated with his office, but
also because of the fact-finding facilities
presumably available to him.
Id. at 303.
"It is settled that it is improper for a prosecutor to express
a personal belief as to the credibility of the defendant or other
witnesses." Commonwealth v. Chmiel, 585 Pa. 547, 620, 889 A.2d
501, 544 (2005), cert. denied, 127 S.Ct. I01 (2006). See also
Commonwealth v. Koehle~, 558 Pa. 334, 363, 737 A.2d 225, 240
(1999).
It is well-settled that the prosecutor has a
special
obligation
to
avoid
"improper
suggestions, insinuations, and, especially,
assertions of persona! knowledge
"
Berger v. United States, 295 U.S. 78, 88, 55
S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Such
conduct is prohibited because "improper
suggestions, insinuations, and, especially,
assertions of personal knowledge are apt to
carry much weight against the accused when
they should properly carry none." Id.
(Emphasis added).
Commonwealth v. Reed, 300 Pa. Super. 224, 230, 446 A.2d 311, 314
(1982) .
41
An examination of the prosecutor’s closing argument here
demonstrates the clear violation of these limitations.
The
prosecutor repeatedly emphasized that he did not want to make a
plea deal with Justina Morley but had to do so in order.to present
to the jury the full picture of what happened.
There was no
evidence at trial as to the motives of the prosecutor for making a
deal with Justina Morley. By explaining ~why" he made such a deal
and tying it in with ~presenting a full picture," the prosecutor
was not only improperly testifying and presenting the jury
information from outside the record, but improperly vouching for
the witness’ credibility. Why else would he make a deal for this
testimony if he~’did not personally believe it to be truthful?
Consider the prosecutor’s repeated comments:
Can you imagine if I didn’t, you know, broker
a deal with the devil, Justina Morley? Can
you imagine if I didn’t have an eyewitness
what they [defense counse!] would have done
with these cell phone records? . . . Can you
imagine if I didn’t have an eyewitness?
N.T. 3/8/05, 236-237.
See also 3/8/05, 238, 239.
We had to.
I’m not proud.
But I make no
apologies.
I have been doing this for 20
years. We left no stone unturned to bring you
an eyewitness .... Can you imagine, we in
an effort to provide you with the details, we
had to broker a deal.
N.T. 3/8/05, 239.
We had to broker a deal with someone. Because
without that, you wouldn’t have had an
eyewitness.
You wouldn’t have known what
happened to Jason on that date in question.
We had to do that.
42
We - we wanted to leave no stone un~urned in
presenting the full picture to you all as to
what happened.
N.T. 3/8/05, 241.
You think I didn’t know who I was sitting
across the table with when I brokered a deal?
Do you think I didn’t know what I was getting.
I saw the photos; of course I did.
N.T. 3/8/05, 247; see also N.T. 3/8/05, 246.
We had to do this. We had to broker a deal.
I had to engage in this unholy alliance with
the devil.
Everything I do, if you are not happy with the
deal that we brokered - I brokered, I
brokered, you send a letter to Lynn Abraham,
you say: You know, listen, Mr. Conroy, he’s a
nice enough guy, but you know what, he really
shouldn’t be making tough decisions.
Send
a letter to her, and she’ll consider it. She
might even call you.
Point the finger at me.
Don’t deny these
people justice. I did that because I know the
arguments that are going to be made in the
courtroom. I brokered that deal. I’m not - I
will not in any way apologize for it.
N.T. 3/8/05, 248-249.
Ladies and Gentlemen, I know what I had to do
to present this case to you. I get one shot.
I get paid, as I told you, to make the tough
decisions.
I knew what decision had to be
made in th~s case, to present you all of the
unadulterated brutality of this case. I had
to bring to you an eyewitness to prove my
case.
And Ladies and Gentlemen, I’ll tell you right
now, the tough decision isn’t brokering a deal
with Justina Morley, because I know that had
to be done.
Counsel wants to know what is
tough, it is sitting down and explaining that
to the Sweeney Family that Jude Conroy: Listen
we have to do this. That is the tough job.
Telling them what based on my professional
opinion, we have to do to present the full
43
facts to the jury. The one chance we get to
present the full facts, this is what has got
to be done.
N.T. 3/8/05, 250-251.
Can you imagine if I didn’t bring an
eyewitness in here what would have happened?
N.T. 3/8/05, 258.
In addition, as if these comments were not sufficiently
prejudicial, the prosecutor also improperly denigrated defense
counse!, their motives and speculated as to their arguments. See
N.T. 3/8/05, 237-238, 249.
Defense counsel objected to this series of improper
prosecutorial arguments (N.T. 3/8/05, 294-298). In overruling his
objections and denying a curative instruction, Judge Hughes stated
that, [The prosecutor] didn’t testify. He stated facts to the
jury. He did broker this deal. It was his deal to broker or not
broker, and he did" _(N.T. 3/8/05, 298). The problem, however, with
the tria! judge’s analysis is that the prosecutor’s motives for
brokering the deal should not have been before the jury.
In
presenting his personal motives the prosecutor plainly (and
improperly) vouched for the credibility of the eyewitness he
presented. In her written opinion, the trial judge evidences the
same error. While Judge Hughes correctly notes that the prosecutor
cannot "assert his personal opinions" (Opinion of Hughes, J. at
19), she fails to understand that by saying ~I had to make a deal
with the eyewitness so that the jury could know what actually
happened," the prosecutor repeatedly vouched for the truthfulness
44
of that witness’ testimony.
It is that vouching for the
truthfulness of a witness that was improper.
The trial prosecutor placed his own personal motives in making
a deal with the alleged eyewitness, Justina Morley, before the
jury. The prosecutor vouched for her credibility by repeatedly
telling the jury that he needed to make a deal with her so that the
jury could know what actually happened, could know ~the facts."
Theprosecutor also attacked and denigrated defense counsel. These
arguments were improper, denied Eddie Batzig his right to a fair
tria!, U.S.CONST., Amend. VI, XIV, and require that this Court
reverse his convictions and remand for a new trial.
8.
A SENTENCE OF LIFE WITHOUT PAROLE WHEN IMPOSED UPON A SIXTEEN
YEAR OLD CHILD IS UNCONSTITUTIONAL UNDER BOTH THE PENNSYLVANIA AND
UNITED STATES CONSTITUTIONS.
Eddie Batzig was sixteen years old at the time of the crime
for which he was found guilty of first degree murder. The judge
imposed a sentence of life imprisonment without the possibility of
parole, as required by 18 Pa.C.S.A. §1102. That he was a juvenile
at the time of the crime was irrelevant. As the imposition of a
life sentence without parole for a juvenile is unconstitutional
under both the United States and Pennsylvania Constitutions, this
Court should vacate the instant life sentence. The Pennsylvania
and United States Constitutions will be considered separately.
45
i. A Sentence Of Life Without Parole For a Sixteen Year
Old Child Violates The Eighth Amendment To The United
States Constitution As It Constitutes "Cruel And Unusua!
Punishment."
The United States Constitution bars "cruel and unusual
punishment."
U.S.CONST., Amend. VIII.
This provision is
applicable to the states through the due process clause.
U.S.CONST., Amend. XIV. A sentence of life imprisonment without
the possibility of parole (~LWOP") for a sixteen year old child is
crue! and unusual. The recent United States Supreme Court decision
in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L.Ed.2d 1
(2005), provides the appropriate analysis.
In Roper the United States Supreme Court held that it violated
the constitution to impose a death sentence for a juvenile. The
Supreme Court determined that the "evolving standards of decency
that mark the progress of a maturing society" demonstrate that it
was disproportionate to execute a defendant for a murder committed
while s/he was under the age of eighteenI~. Id. at 561 (quoting
Trop v. Dulles, 356 U.S. 86, I00-i01 (1958) (plurality opinion).
It was unconstitutional to impose a death sentence because minors
cannot be deemed among the most culpable or beyond rehabilitation.
The Court relied on recent medical, scientific, and psychological
studies emphasizing the difference in brain development between
youths and adults, which show a decreased culpability and an
~
The defendant in Commonwealth v. Wilson, 911 A.2d 942
(Pa. Super. 2006), had contended that ~ proved that a juvenile
could not form the requisite mens rea for murder, an allegation not
involved in the instant case.
Wilson did not deal with a
constitutionality of the LWOP sentence itself, the issue presented
here.
46
increased likelihood of rehabilitation for minors. Id. at 569-71.
The same is true for LWOP sentences for children below age 18; such
a sentence is excessively retributive in light of minors’
diminished culpability for their crimes, and which by its very
design denies any possibility of rehabilitation.
In reaching its holding the Ro_9_op_9~ Court explained that it had
to examine state law and practice to see if there is a nationa!
consensus against the death penalty for minors, as well as apply
its own independent judgment, Id. at 564, which it did by examining
scientif±c, medical, and psychological studies of minors; the
purposes of punishment, international law, and the law and practice
of other nations12.
A. State law and practice show a consensus
against LWOP sentences for juveniles.
In Roper the Supreme Court examined state law and practice and
determined that 30 states prohibited the death penalty for minors
and that the juvenile death penalty was imposed only infrequently
in the remaining 20 states. Id. at 563-65. The Supreme Court paid
special attention to recent laws and trends and concluded that
there was a national consensus against imposing death sentences on
minors. Id. at 565-67.
An analysis of state law reveals a national consensus against
juvenile LWOP. That is because, although 45 states allow juvenile
Although a LWOP sentence in Roper was substituted for the
death penalty, the case should not be misconstrued as precedent
supporting LWOP for minors. The Court’s judgment affirmed the
Missouri Supreme Court’s setting aside of the death penalty, and no
more.
Id. at 578-79.
The constitutionality or even the
appropriateness of LWOP was not an issue.
47
LWOP, a majority of states (35) and the District of Columbia have
laws that limit LWOP against minors in some fashion. Three states
and the District of Columbia bar LWOP against any minor13, and two
states bar LWOP altogether14. Of the states that al!ow LWOP against
minors, 31 impose an age limit on these sentences somewhere below
18, either as a result of minimum age for transfer to adult court
or minimum age of responsibility rules (29 states)~, or an age
~3
Colorado, Kansas, Oregon, and the District of Columbia.
See C.R.S.A. section 17-22.5-104 (IV) (2006); Kano Stat. Ann. ~
21-4622 (2005 Supp.) ; D.C. Code. § 22-2104(a) (2005).
Alaska and New Mexico. See Alaska Stat. § 12.55.125(a),
(h), & (j) (LexisNexis 2004); N.M. Stat. Ann. ~ 31-21-10 (Supp.
2005).
~s
States that permit LWOP against minors but mandate
minimum age for transfer or criminal responsibility: Alabama (age
14), Arizona (age 14)~ Arkansas (age 14), Connecticut (age 14),
Georgia (age 13), Illinois (age 13), Iowa (age 14), Kentucky (age
14), Louisiana (age 15), Massachusetts (age 14), Minnesota (age
14), Mississippi (age 13), Missouri (age 12), Montana (age 12),
Nevada (age 8), New Hampshire (age 13), New Jersey (age 14), North
Carolina (age 13), North Dakota (age 14), Ohio (age 14), Oklahoma
(age 13), South Dakota (age 10), Texas (age I0), Utah (age 14),
Vermont (age i0), Virginia (age 14), Washington (age 15), Wisconsin
(age i0), Wyoming (age 13). See Ala. Code§ 12-15-34 (1994 & Supp.
2005); Ariz. Rev. Stat. Ann. ~ 13-501(A) (i) (2001 & Supp. 2005) and
Ariz. Rev. Stat. Ann. § 13-501(B) (i) (2001 & Supp. 2005); Ark. Code
Ann. ~ 9-27-318 (2002 & Supp. 2005); Conn. Gen. Stat. Ann. ~
46b-127 (West 2004 & Supp. 2005); 705 Il!. Comp. Stat. Ann.
405/5-130(4) (a) (Westlaw 2006); Iowa Code Ann. ~ 232.45 (6) (a)
(West 2000 & Supp. 2006); Ky. Rev. Stat. Ann. ~§ 635.020, 640.010
(LexisNexis 1999 & Supp. 2005), see also Ky. Rev. Stat. Ann. ~
532.025 (LexisNexis 1999 & Supp. 2005); La. Child. Code Ann. art.
305 (West 2004); Mass. Gen. Laws Ann. ch. 119, ~ 72(b) (West 2003
& Supp. 2005); Minn. Stat. Ann. ~ 260B.125 (2003 & Supp. 2006);
Miss. Code Ann., ~ 43-21-151(a) (West 1999), and Miss. Code Ann.,
§ 43-21-157(8) (West 1999 & Supp. 2005); Mo. Ann. Stat. § 211.071
(West 2004 & Supp. 2006); Mont. Code Ann. § 41-5-206 (2005);
Nev. Rev. Stat.Ann § 194.010; N.H. Rev. Stat. Ann. ~628:1(II)
(Westlaw 2008); N.J. Stat. Ann. 2a:4A-26 (West 1987 & Supp. 2005);
N.D. Cent. Code § 12.1-04-01 (1997); Ohio Rev. Code Ann. ~
2152.i0(B) (LexisNexis 2002 & Supp. 2005); Okla. Stat. Ann. Tit i0,
(continued...)
48
limit on LWOP itself (two states).16 Just 14 states~ including
Pennsylvania, allow these sentences irrespective of a child’s ageIv.
is (...continued)
§ 7306-I.I(B) (West 1998 & Supp. 2006) ; S.D. Codified Laws
26-11-3.1 (2004); Tex. Fam. Code Ann. ~ 54.02: subsection (a) (I) ;
subsection (j) (2)and subsection (m); Tex. Penal Code ~8.07; Utah
Code Ann. § 78-3a-502(3) (2002); Vt. Stat. Ann. tit. 33, § 5506
(1998); Va. Code Ann. § 16.1-269.1 (2003 & Supp. 2005); Wash. Rev.
Code Ann. § 13.040.030 (Westlaw 2006), Wash. Rev. Code Ann.
13.040.110 (Westlaw 2006); Wis. Stat. Ann. ~ 938.18, 938.183 (West.
2000 & Supp. 2005) ; Wyo. Stat. Ann. § 14-6-203(f)(3) (2005) and
Wyo. Stat. Ann. ~ 14-6-237 (2005).
16
California and Indiana. See Cal. Penal Code ~190.5(b)
(Deering 2006) (no LWOP below age 16); Ind. Code Ann.
35-50-2-3(b) (LexisNexis 2002) (no LWOP below age 16); Ind. Code
Ann. § 35-50-2-3 (LexisNexis 2002).
~7
Delaware, Florida, Hawaii, Idaho, Maine, Maryland,
_Michigan, Nebraska, New York, Pennsylvania, Rhode Island, South
Carolina, Tennessee, West Virginia. See Del. Code Ann. Tit. ii,
4209 (2005); Del; Code Ann. Tit. i0, ~ i010, i011 (1999 & Supp.
2004); Fla. Stat. §775.082, (2005); Fla. Stat. § 985.225 (2005);
Haw. Rev. Stat.Ann. § 571-22 (LexisNexis 2005 & Supp. 2005); Idaho
Code Ann. ~ 18-4004 (Michie 2004); Idaho Code Ann. §~ 20-508,
20-509 (Michie 2004); Idaho Code Ann.
§ 20-509(3)-(4) (Michie
2004); Me. Rev. Stat. Ann. Tit. 17-A, § 1251 (West Supp. 2005),
State v. St. Pierre, 584 A.2d 618, 621 (Me. 1990); Me. Rev. Stat.
Ann. Tit. 15, § 3101 (2003 and West Supp. 2005); Md. Code Ann.,
Crim. Law ~§ 2-202, 2-203, 2-304 (Michie 2002); Md. Code Ann.,
Cts. & Jud. Proc. § 3-8A-06(West 2002 & Supp. 2005); Mich. Comp.
Laws Ann. ("M.C.L.A.")~ 712A.4; M.C.L.A. ~ 769.1; M.C.L.A.
750.316; M.C.L.A. §791.234(6); M.C.L.A. § 791.244; Neb. Rev. Stat.
~§ 43-247, 43-276; Neb. Rev. Stat. § 43-276; Neb. Rev. Stat § 28-105;
Neb.Rev. Stat § 29-2522; N.Y. McKinney’s Penal Law ~ 490.25 and
490.25(d);
but
see,
N.Y.
McKinney’s
Pena!
Law
125.25(5),125.26,125.27; ~§30.00(i)-(2) ; 18 Pa.C.S.A. ~ 1102, 9711
(West 1998 & Supp. 2005), 61 Pa.C.S.A. § 331.21 (West 1999 & Supp.
2005); 42 Pa.C.S.A. ~ 6302 (Westlaw 2006), 6322(West 2000 & Supp.
2005); R.I. Gen. Laws § 12-19.2-4 (LexisNexis 2002); R.I. Gen. Laws
§ 14-1-7(2002); R.I. Gen. Laws ~ 12-19-11; R.I. Gen. Laws §11-23-2;
S.C. Code Ann.
§ 17-25-45
(2005); S.C. Code Ann.
20-7-7605(6) (Westlaw 2006), see also State v. Corey, 339 S.C. 107,
529 S.E.2d 20, 23 "(S.C. 2000); Tenn. Code Ann. §§ 39-13-202, 204
(2003); Tenn. Code Ann. § 37-1-134 (a) (i) (2005) ; W. Va. Code
61-2-2, 62-3-15; W. Va. Code ~ 49-5-13(e) (Michie Supp. 2005); W.
Va. Code § 49-5-10 (Michie Supp. 2004); W. Va. Code ~ 49-5-I0(e).
49
After Roper that legislatures have established an_DiZ age limits
on LWOP is crucial. As a matter of law there is no constitutional
distinction between a child 16 to 18 years old and those below age
16; in reversing Stanford v. Kentucky, 492 U.S. 361 (1989), which
had permitted the death penalty for juveniles age 16 and above
based on the notion that juveniles below age 16 were less culpable
for their crimes, the Roper Court held, "We conclude the same
reasoning applies to al! juvenile offenders under 18." Id. at 571.
Accordingly, states’ line-drawing to limit LWOP to children above
a certain age is, after ~, a distinction without a
constitutiona! difference.
The fact that 36 states and the
District of Columbia limit LWOP against minors at all reveals a
consensus that this sentence is categorically inappropriate for all
minors below a certain age, and a consensus that some line must be
drawn. This line should be drawn at 18 according to the reasoning
of Roper. Id. at 574.
As for trends, Colorado and Montana recently imposed limits on
LWOP against minors.
Colorado outlawed LWOP against minors
altogether, C.R.S.A. section 17-22.5-104 (IV) (2006).
Montana
barred applying mandatory minimum sentences and limits on
eligibility for parole against anyone below 18. Mont.Code Ann.
46-18-222 (i) (Westlaw 2007).
The Roper Court placed special
emphasis on such recent changes in state law. Id. at 565-67.
The pattern of actua! practice in the states even more sharply
reveals this consensus.
Five states that permit LWOP against
5O
children do not have any inmates serving these sentencesIB. Indeed,
only a handfu! of states actually impose LWOP against minors with
any regularity. As of 2004, according to statistics gathered by
Human Rights Watch, well over half of the 2,225 people known to be
serving LWOP for crimes they committed as juveniles were imprisoned
in just four states:. Florida, Louisiana, Michigan, and
Pennsylvania, with Pennsylvania having the highest number in the
nation. Report, Human Rights Watch, The Rest of Their Lives: Life
Without Parole for Child Offenders in the United States, Table 5 at
35 and Appendix D: State Population Data Table (October, 2005)
(hereinafter, "HRW Report").
~.: Practice reveals a trend against applying LWOP against
children. The sentence was meted out 152 times in 1996 but just 54
times in 2003. HRW Report at 31, Figure 3. Thus, state practice
shows that LWOP against minors is rare and that there is a broad,
national consensus against imposing this sentence on children.
B. The Conclusions of Studies, Adopted by the
Supreme Court in Roper, Apply Equally to the
Conclusion that LWOP Sentences are Cruel and
Unusual Punishment And Violate Due Process for
any Offender Who Committed the Charged Crime
When Younqer Than 18.
In Roper the Supreme Court concluded that scientific and
sociological studies demonstrated that minors possess less maturity
and less sense of responsibility than adults, and therefore it was
cruel and unusual and violative of due process to consider them as
18
Maine, New Jersey, New York, Utah, and Vermont. See
Report, Center for Law and Global Justice, University of San
Francisco School of Law, ~Sentencing Our Children To Die In Prison:
Global Law And Practice" (2007), Appendix.
51
morally culpable as an adult would be for a similar crime. Id. at
569-71. Children under 18 have diminished culpability and should
be treated differently than adults based on "[t]hree general
differences: [a] lack of maturity and an underdeveloped sense of
responsibility
juveniles are more vulnerable or susceptible
to negative influences and outside pressures, including peer
pressure
the character of a juvenile is not as well formed as
that of an adult."
Id. at 569-70 (citations deleted).
These
studies apply equally to LWOP, which is also harsh and final. The
.R~o_~p_~ Court concluded that treating children younger than 18 the
same as adults is "misguided" because children have a greater
chance to reform, Id. at 570, and that determining whether anybody
below the age of 18 is beyond rehabilitation is practically
impossible, even for psychiatrists and psychologists.
573-74.
Id. at
The Court stated, "In recognition of the comparative
immaturity and irresponsibility of juveniles, almost every State
prohibits those under 18 years of age from voting, serving on
juries, or marrying without parental consent." Id. at 569.
These factual conclusions reached by the Court also vindicate
a strong current of Supreme Court precedent that distinguishes
between adults and minors.
Outside the Eighth Amendment, the
Supreme Court has often ensured that governmental power would be
constrained from harming, or used to protect, minors, based on
their less-developed nature and judgment.
See ~, Kaupp v.
Texas, 538 U.S. 626 (2003) (voluntariness of confession); Fare v.
Michael C., 442 U.S. 707, 725 (1979) (waiver of Miranda rights);
52
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of
consent to search). Indeed, the Supreme Court has let states use
their power of patens patriae to detain children preventively to
protect them "from the downward spiral of criminal activity.
"
Schall v. Martin, 467 U.S. 253, 265-66 (1984). The Supreme Court
has regularly let states exercise power over minors that would be
unconstitutional if exercised over adults. See ~, Ashcroft v.
American Civil Liberties Union, 542 U.S. 656, 666-68 (2004)
(harmfu! images on Internet); Bd. of Educ. v. Earls, 536 U.S. 822,
838 (2002) (drug testing high school students); Hazelwood Sch.
Dist. V. Kuhlmeier, 484 U.S. 260, 273 (1988) (censoring student
publications); Ginsburg v. New York, 390 U.S. 629, 637 (1968)
(prohibiting purchase of obscene materials).
The studies relied on in Roper and other Supreme Court
precedent militates against the constitutionality of LWOP against
children.
C. International Law and the Law and Practice
of Other Nations Establish a World-Wide
Consensus Aqainst LWOP Sentences for Minors.
In Roper v. Simmons, 543 U.S. 551 (2005) the Supreme Court
referred to the laws of other countries and to international
authorities as instructive for its interpretation of the Eighth
Amendment’s prohibition of "cruel and unusual" punishment. Id. at
575. The Supreme Court considered the evolution of international
law and also the evolution of practice in the community of nations.
Id. at 556-77. International law and practice should be considered
to determine whether LWOP is unconstitutional.
53
International law recognizes that the special characteristics
of juveniles preclude them from being treated the same as adults in
the criminal justice system. Committee on Rights of the Child,
~General Comment No. I0: Children’s Rights in Juvenile Justice,"
paras. I0-ii UN Doc. No. CRC/C/GC/10 (April 25, 2007) (hereinafter
"Committee on Rights of the Child"). The harsh sentences dispensed
in adult courts do not take into account the lessened culpability
of juvenile offenders, their ineptness at navigating the criminal
justice system, or their unique potential for rehabilitation and
reintegration into society. Perversely, LWOP sentences penalize
juvenile offenders more than adults because juveniles, by virtue of
their young age, will likely serve ~onger than an adult given LWOP
for the same crime.
The practice of imposing LWOP sentences on juveniles was a
recent phenomenon occurring largely in the 1990s by a small
minority of countries seeking harsher sentences against juvenile
offenders~. However, international law now prohibits and indeed
global practice has eliminated LWOP sentences for juvenile
offenders: the United States stands alone among all countries of
the world in allowing this sentence2°.
de la Vega, C. and Leighton, M., ~Sentencing our Children
to
Die
in
Prison:
Global
Law
and
Practice,"
http://www.usfca.edu/law/home/CenterforLawandGlobalJustice/LWOP F
inal Nov 30 Web.pdf, last visited May II, 2008 at 6. Hereinafter
"de la Vega and Leighton."
2o http://www.law.usfca.edu/home/CenterforLawandGlobalJustice/
Juvenile%20LWOP.html (last visited May 13, 2008).
54
i. Treaties to which the United
States is a Party Prohibit LWOP
Sentences Because of the Special
Characteristics of Children.
International law as expressed through international treaties
and other agreements ratified by the United States is the supreme
~law of the land" in the United States and should be applied in the
context of juvenile sentencing. The Supremacy Clause, U.$.CONST.,
Article VI, Clause 2, mandates:
This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and al! Treaties made, or which shall
be made, under the authority of the United
States, shal! be the supreme Law of the land;
and the Judges in every States shall be bound
thereby, any Thing in the Constitution of Laws
of any State to the Contrary notwithstanding.
Hence, when a treaty and state law conflict, the treaty
controls21. The burden falls .on Pennsylvania to comply with the
United States’ international law obligations. ~One consequence of
our form of government is that sometimes States must shoulder the
primary responsibility for protecting the honor and integrity of
the Nation" [in applying an international law obligation of the
United States]. Medellin v. Texas, 552 U.S.
, 128 S.Ct. 1346,
1374 (2008) (Stevens, J. concurring) (voted with majority on
application of international law obligation of the United States to
the State of Texas in reconsideration of criminal sentence).
The prohibition against applying LWOP sentences to juveniles
is recognized as an obligation of the United States under the
21
See Zscherniq v. Miller, 389 U.S. 429, 441 (1968); Clark
v. Allen, 331 U.S. 503, 508 (1947); see also, Missouri v. Holland,
252 U.S. 416, 433-35 (1920).
55
International Covenant on Civil and Political Rights (~ICCPR"), to
which the United States is a party2~.
The Committee on Human
Rights, the oversight authority for the treaty, determined that the
United States is not in compliance with the treaty because it
allows LWOP sentences for juveniles; it made this determination
though the United States had taken a-reservation to the treaty
allowing states to try juveniles in adult court in ~exceptional
circumstances.~" The Committee also expressed its grave concern
~that the treatment of children as adults is not applied in
exceptional circumstances.only
." Id.
The extraordinary breadth and rapid development in the United
States of sentencing child offenders to LWOP since U.S.
ratification of the ICCPR contradicts the assertion that the United
States has applied this sentence only in exceptional circumstances.
In fact, the tota! number of juveniles tried and sentenced as
~2
International Covenant on Civil and Political Rights,
G.A. res. 2200A (XXI), 21 GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976,
ratified by the United States on June 8, 1992.
See
http://www2.ohchr.org/english/bodies/ratification/4.htm (last
visited May ii, 2008).
The Committee found the U.S.out of
compliance with its treaty obligations, in particular Article
24(i) ("every child shall have, without any discrimination,
the right to such measures of protection as are required by his
status as a minor.") in applying juvenile LWOP sentences.
Concluding Observations of the Human Rights Committee on the United
States of America,
87th Sess. held on 27 July 2006,
(CCCPR/C/$R.2395), at para. 34.
Human Rights Committee Concluding Observations, at para.
34. In ratifying the ICCPR the United States declared, "The United
States reserves the right, in exceptional circumstances, to treat
juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of
article
I0
and paragraph
4
of
article
14."
See
http://www2.ohchr.org/english/bodies/ratification/docs/Declaratio
nsReservationsICCPR.pdf (last visited May II, 2008).
56
adults to LWOP now exceeds 2,381, many of whom were first-time
offenders: in Pennsylvania over I00 juveniles have bien sentenced
to LWOP since 2005. de la Vega and Leighton, supra, at ii, fn. 19.
The Committee Against Torture, the official oversight
authority for the Convention Against Torture, Cruel, Inhuman or
Degrading Treatment or Punishment, to which the United States is
also a party, evaluated United States compliance in 2006 and
similarly found that the life imprisonment of children "could
constitute crue!, inhuman or degrading treatment or punishment,"24
in violation of the treaty.
Moreover, minority juveniles in-the United States are subject
to discrimination in the application of the LWOP sentence. The
rate of African American youth compared to white youth per i00,000
youths incarcerated in adult prisons is 26 to 2 and youth of color
in some jurisdictions receive more than 90% of the LWOP sentences
given, de la Vega and Leighton, supra, at 15. For this reason,
the Committee on the Elimination of Racial Discrimination, the
official oversight authority for the Convention on the Elimination
of Racial Discrimination, to which the United States is a party,
International Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (G.A. res. 39/46, 39
U.N. GAOR Supp. (No. 51) at 197, U.N.Doc A/39/51(1984), entered
into force June 26, 1987, ratified by the U.S. Oct. 21, 1994,
http://www2.ohchr.org/english/bodies/ratification/9.htm
(last
visited May ii, 2008); see Committee Against Torture, 36th Session,
"Conclusions and Recommendations of the Committee Against Torture:
United States of America," at para. 35, UN Doc. NO. CAT/USA/CO/2,25
(July 2006).
57
determined that juvenile LWOP sentences are incompatible with the
United States’s treaty obligations2S.
2. The Prohibition of Juvenile LWOP
is Customary International Law and A
Jus Cogens Norm
The prohibition against sentencing child offenders to LWOP is
part of customary international law and the virtually universal
condemnation of this practice can now be said to elevate the
prohibition to the level of a jus cogens norm26. Once a rule of
customary international law is established, that rule generally
applies to all nations, including those that have not formally
ratified it themselves~7. When customary law becomes a jus cogens
norm, no objection by a country will suffice to prevent the norm’s
~s
International Convention on Elimination of Racial
Discrimination, GoA. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No.
14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into
force Jan. 4, 1969, ratified by the United States 21 October 1994,
http ://www2. ohchr, org/english/bodies/ratification/2, htm
( last
visited May Ii, 2008) ; see Committee on Elimination of Racial
Discrimination, para 21, page 6, Concluding Observations of the
United States, CERD/C/USA/CO/6 March 6, 2008.
Article 53, Vienna Convention on the Law of Treaties 1155
U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980; de la
Vega, C. and Brown, J., ~Can a United States Treaty Reservation
Provide a Sanctuary for the Juvenile Death Penalty?" 32 USF.LoRev.
735, 759-762 (1998).
27
A norm is customary international law if it is supported
by widespread, constant, and uniform practice compelled by legal
obligation, notwithstanding that there may be a few uncertainties
or contradictions in practice during this time.
See, .e.________________g_~., 2
Restatement (Third) of Foreign Relations Law of the United States
~n102 (1986) (Comment a) ; U.K.v. Norway, 1951 I.C.J. 116, 138-39;
Nicaragua v. U.S., 1986 I.C.J. 14, 98, para. 186; FRG v. Denmark:
FRG v. Netherlands, 1969 I.C.J. 3, paragraphs, 73-74.
58
applicability to all nations28. United States law recognizes that
customary international law is part of our domestic law and binds
our government. The Paquete Habana, 175 UoS. 677, 699-700 (1900).
The prohibition of juvenile LWOP sentences fulfills these
requisites for three reasons.
First, there is widespread and
consistent practice by countries to not impose a sentence of LWOP
for juvenile offenders as a measure that is fundamental to the
basic human value of protecting the life of a child, de la Vega
and Leighton, supra, at 17.
Second, the imposition of such
sentences is relatively new and now practiced by only one nation,
the United States--all other countries which had taken up the
practice have joined the global community in abolishing the
sentence. Third, there is near universal acceptance (but for the
United States) that the norm is legally binding on all countries29.
In addition to the legal prohibition recognized in the context
of treaty law, countries have reinforced this obligation in a
myriad of international resolutions and declarations over the past
See, e._~______________g~., 2 Restatement (Third) of Foreign Relations Law
of the United States ~n102 (1986).
~9
The prohibition is codified in the Convention on the
Rights of the Child (CRC) article 37, which prohibits juvenile
LWOP. The CRC treaty has been ratified by every country in the
world except the United States and Somalia. Art. 37, Convention on
the Rights of the Child, U.N.G.A. res. 44/25, annex, 44 U.N. GAOR
Supp. (No. 49) at 167 Convention, U.N. Doc. A/44/49 (1989), entered
into force Sept. 2, 1990. In early 2007, the Committee on the
Rights of the Child, the oversight authority for the CRC, clarified
in a General Comment, ~The death penalty and a life sentence
without the possibility of parole are explicitly prohibited in
article 37(a) CRC [of the treaty]." Committee on Rights of the
Child, Committee on Rights of the Child, General Comment No. i0,
Children’s Rights in Juvenile Justice, at para. 4(c), No.
CRC/C/GC/10 (25 April 2007).
59
two decades3°.
A universal consensus has coalesced and even
accelerated in the last several years, as evidenced by United
Nations General Assembly resolutions, the determination of treaty
bodies evaluating United States practice and the General Comment on
Juvenile Justice of the Committee of the Rights of the Child.
Indeed, because only the United States applies this sentence, the
prohibition against the sentence is a jus cogens norm, a practice
no longer tolerated by the international community of nations as a
legal penalty for juveniles.
2. A Sentence Of Life Without Parole For a Sixteen Year
Old Child Violates Article I, Section 13 Of The
Pennsylvania Constitution Which
Prohibits
Cruel
Punishment.
Even if the federal constitution were not violated by
sentencing a minor to LWOP, the Pennsylvania Constitution certainly
is. Pennsylvania leads the nation in the number of~inmates serving
LWOP for crimes committed as minors, a distinction that recently
caused the New York Times to label Pennsylvania "the worst
offender" in an editoria! about LWOP sentences against minors. See
"A Shameful Record," New York Times, February 6, 2008.
Pennsylvania’s children are not the worst children in the United
30
United Nations General Assembly by a vote of 183 to one
(United States the only country voting against ) , passed a
resolution urging countries to abolish the death penalty and LWOP
for those under 18 years. G.A. Resolution on Rights of the Child,
adopted 18 December 2007, G.A. Res. 62/141, para 36 (a), U.N. Doc.,
62st
Session
(Dec.
18,
2007) ,
available
at
http : //daccessdds. un. org/doc/UNDOC/GEN/NO 7/472/23/PDF/N0747223. pd
f?OpenElement. See also, U.N. General Assembly Resolution 61/146,
"Rights of the Child," para. 31(a), UN Doc. No. A/Res/61/146o (Dec.
1 9 ,
2 0 0 6 ) ,
a v a i 1 a b 1 e
a t
http ://daccessdds. un. org/doc/UNDOC/GEN/NO6/503/19/PDF/N0650319, pd
f ?OpenElement o
6O
States, or, indeed, in all the world (given that Pennsylvania has
sentenced more minors to LWOP than any other state and the United
States has sentenced more minors to LWOP than any other country).
.In considering whether a protection under the Pennsylvania
Constitution is greater than under the United States Constitution,
this Court may consider: the text of the Pennsylvania Constitution;
the provision’s history, including case law; related case law from
other states; and policy considerations unique to Pennsylvania.
Commonwealth vo Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).
Applying the method set out in Edmunds shows that the text of
Article I, Section 13 of the Pennsylvania Constitution differs from
the Eighth Amendment. It reads: "Excessive bail shal! not be
required, nor excessive fines imposed, nor cruel punishments
inflicted." Comparing the text of the Pennsylvania Constitution to
the United States Constitution should lead one to conclude the
Pennsylvania Constitution is broader. It bars "cruel punishments"
while the United States Constitution bars punishments that are both
"cruel" and "unusual." Hence, the United States Constitution would
permit a "cruel" punishment that is common (i.e., not unusual).
The provision’s history shows that although Pennsylvania
courts have held that Pennsylvania’s ban on cruel or unusual
punishments is coextensive with the Eighth Amendment, those cases
did not involve minors receiving long, harsh sentences, nor did
they arise after ~ where it was established that there is a
constitutional difference between defendants below age 18 and above
age 18 regarding to punishment. See Commonwealth v. Zettlemoyer,
61
500 Pa. 16, 72-74, 454 A.2d 937, 967 (1982), cert. denied, 461 U.S.
970 (1983) (holding that Pennsylvania’s constitutional ban on
excessive punishment was co-extensive with United States
constitutional ban where adult argued that death penalty violated
Pennsylvania constitution); Commonwealth v. Carter, 855 A.2d 885,
892 (Pa. Super. 2004), appeal denied, 581 Pa. 670, 863 A.2d 1142
(2004) (not considering Pennsylvania Constitution in deciding,
pre-Ro_9~p_~_~, whether Eighth Amendment bars LWOP against 16 year old);
Commonwealth v. Lucas, 424 Pa. Super. 173, 177, 622 A.2d 325,~ 327
(1993) (housing minor in adult prison instead of juvenile facility
to serve sentence of two to four years did not violate United
States or Pennsylvania constitutional prohibitions against
excessive punishment; court relied on Zettlemoyer given that the
minor "has not made an effort" to argue how Pennsylvania’s
constitution
provided
greater
protection
than
federal
constitution); Commonwealth v. Strunk, 400 Pa. Super. 25, 582 A.2d
1326 (1990) (90-day driver’s license suspension for a minor’s
possession and consumption of alcoholic beverages does not violate
federal or
Pennsylvania constitutional ban on excessive
punishment).
In particular, Zettlemoyer, was decided before
Edmunds which established the method to determine whether the
Pennsylvania Constitution is broader than the federal Constitution.
Pennsylvania history reveals longstanding special protections
for minors against the full weight of crimina! punishment.
In
Commonwealth v. Kocher, 529 Pa. 303, 602 A.2d 1308 (1992) the
Pennsylvania Supreme Court referred to the common law presumption
62
that children under the age of 14 are incapable of forming the
requisite criminal intent to commit a crime, citing Commonwealth v.
Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978) (en banc),
overruled by Commonwealth v. G.T., 409 Pa. Super. 15, 597 A.2d 638
(1991) (en banc). While this common law presumption was replaced
by the Juvenile Act, its existence for decades demonstrates that
Pennsylvania’s common law was especially protective of minors. In
addition, even though all minors’ murder cases start in adult
court, a child can petition to send the murder case to juvenile
court. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d i01 (1975).
Special rules govern the admissibility of a child’s confession.
Commonwealth v. Williams, 504 Pa~511, 475 A.2d 1283 (1984). While
there is no constitutional guarantee of s~ecial treatment for
minors, Commonwealth v. Williams, 514 Pa. 62, 71, 522 A.2d 1058,
1063 (1987), the special rules for children demonstrate that this
Court may conclude that what would be permissible as an adult
punishment may be cruel (and unconstitutional) for a minor.
There is a final case relevant to the assessment of whether
the Pennsylvania Constitution’s prohibition against "crue!
punishment" provides greater protection for juveniles. The Supreme
Court in Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980),
upheld the constitutionality of life imprisonment for first degree
murder. Although the defendant was fourteen years old, the Court
never discussed the significance of this fact but addressed the
sentence only generally. Id. at 33-34. The Court established the
test for determining whether a statutory punishment can be a
63
"cruel" punishment: whether it is an excessive and unnecessary
punishment disproportionate to the crime that shocks the moral
conscience of the community. The excessive and disproportionate
nature of life imprisonment for children has been discussed above.
Moreover, given the special concern for minors under Pennsylvania
case law, Pennsylvania statutes and Pennsylvania-common law, it
would indeed shock the moral conscience of the community to punish
children exactly the same way as one would punish an adult. Also
Sourbeer predates Edmunds, which further diminishes its relevance.
At least two other states have interpreted their constitutions
as barring LWOP against children in particular cases. Workman v.
Commonwealth, 429 S.W.2d .374, 377 (Ky. 1968) (holding that LWOP
against children for rape violates United States and Kentucky
constitutions, stating: "It seems inconsistent that one be denied
the fruits of the tree of law, yet subjected to all its thorns.");
Naovarath v. State, 105 Nev. 525, 527, 779 P.2d 944, 946 (Nev.
1989) (holding that LWOP against 13-year old violated Nevada and
United States Constitutions, and noting that the sentence announced
that the boy must be "permanently unregenerate and an unreclaimable
danger to society who must be caged until he dies").
Last, a policy consideration unique to Pennsylvania is that
many if not most Pennsylvanians likely would be surprised to see
that their venerable Constitution has somehow permitted
Pennsylvania to become the world’s leading jailer of children, a
jailer that throws away the key, forever, denying even a chance at
64
redemption. Pennsylvanians, and Pennsylvania’s children, deserve
.better.
A juvenile LWOP sentence violates the Pennsylvania
Constitution. It denies the child’s age and immaturity, as well as
any possibility that the minor might rehabilitate over the course
of his remaining youth and adult life.
Such a sentence is
inconsistent with Pennsylvania common law and case law which is
more protective of minors and recognizes the inherent weakness,
vulnerability and suggestibility of children.
3. Even if LWOP Sentences Were Not Unconstitutional for
Juveniles, a Mandatory LWOP Sentence for Juveniles
Violates Both the U.S. and Pennsylvania Constitutions.
Alternatively, a statute such as the one in this case, 18 Pa.
C.S.A. § 1102, prescribing a mandatory life sentence without the
possibility of parole for both first and second murder degree,
violates the U.S. and Pennsylvania Constitutions when applied to a
person below age 18 because the statute renders courts impotent to
give a more just sentence by precluding courts from considering a
child’s age, immaturity, reduced mental capacity, reduced role in
the offense, or any other factors related to his young age -- the
precise characteristics that the United States Supreme Court in
Roper concluded categorically "appl[y] to all juvenile offenders
under 18," Id. at 571, and which the Roper Court found conclusive
in abolishing the death penalty against minors. Id. at 574. The
Pennsylvania statute admits no distinction whatsoever between
adults and children. Laws that automatically.transfer a minor to
adult court when charged with certain crimes, and that mechanically
65
prohibit any consideration of a child’s age when sentencing,
especially to the harsh penalty of LWOP, are undoubtedly cruel.
This lack of protection for children is also unusual: Pennsylvania
falls within the minority of five states that bar courts from
making any distinction between children and adults in imposing a
LWOP sentence31.
~
The highest court in Illinois concluded that mandatory LWOP
against a child convicted of multiple murders violated Illinois’
constitution.
Three converging statutes--mandatory transfer to
adult court; a prohibition of consideration of degree of
participation where more than one actor committed the crime; and
the mandatory sentence--prevented the court from considering the
minor’s age.
People v. Miller, 202 Ill.2d 328, 340-41 (2002).
Montana recently banned applying mandatory minimum sentences or
restricting parole eligibility when the defendant is below 18.
Mont. Code Ann. § 46-18-222 (I) (Westlaw 2007). This Court should
also hold that the mandatory nature of Pennsylvania’s LWOP when
applied against children
violates the United States and
Pennsylvania Constitutions.
31
These five states are: Florida, Nebraska, New York,
Pennsylvania, and South Carolina.
66
VII.
CONCLUSION
This Court should reverse the decision of the suppression
court be!ow and should remand for a new trial. Alternatively, this
Court should reverse the severance decision of the court below and
should remand for a new .trial where Eddie Batzig not be tried with
Dominic Coia. Alternatively, because of other trial errors, this
Court should remand for a new trial. Alternatively, this Court
should remand for a new sentencing hearing where the imposition of
a LWOP sentence is barred.
Res.
.~tfully submitted,
BRADLEY S. BRIDGE,
Assistant Defender
OWEN W. LARRABEE,
Assistant Defender
Deputy Chief, Appeals Division
KARL BAKER, Assistant Defender
Chief, Appeals Division
ELLEN T. GREENLEE, Defender
Defender Association
of Philadelphia
1441 Sansom Street
Philadelphia, Pennsylvania 19102
Identification No. 00001
(215) 568-3190
BRIAN J. FOLEY, Visiting
Associate Professor of Law
Drexe! University Earle Mack
School of Law
Philadelphia, PA
MICHELLE LEIGHTON
Director Human Rights Programs
Center for Law & G!obal
Justice
School of Law
Philadelphia, PA
MARSHA LEVICK
Lega! Director
LAVAL S. MILLER-WILSON
Senior Attorney
MIA V. CARPINIELLO
Staff Attorney
Juvenile Law Center
The Philadelphia Building
1315.Walnut Street, 4th F!oor
Philadelphia, PA 19107
CONSTANCE DE LA VEGA
Frank C. Newman International
Human Rights Clinic
School of Law
67

COMMONWEALTH OF PENNSYLVANIA VS. EDWARD BATZIG

Transcription

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