Freeman v. Capozza, CIVIL ACTION NO. 19-04333

CHARLES FREEMAN, Petitioner, v. MARK CAPOZZA, et al., Respondents.

CIVIL ACTION NO. 19-04333

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 8, 2021

MEMORANDUM

EDUARDO C. ROBRENO, J.

I. INTRODUCTION

Pro se Petitioner Charles Freeman was convicted by a jury in the Montgomery County Court of Common Pleas of second-degree murder, robbery, kidnapping, conspiracy to commit kidnapping, and conspiracy to commit robbery. Freeman was sentenced to life imprisonment. Freeman now brings a § 2254 habeas petition raising six claims: two ineffective assistance of counsel claims, one Brady claim, one Bruton claim, one Fourth Amendment claim, and a claim that the trial court violated his constitutional rights by denying his motion in limine. Magistrate Judge Heffley issued a report and recommendation that the petition be denied because, while Judge Heffley found that a Bruton violation occurred during trial, the violation was harmless error.

Freeman raises seven objections to the Report and Recommendation. This court applies de novo review to the portions of the Report and Recommendation to which Freeman objects. 28 U.S.C. § 636(b)(1). The Court agrees with Judge Heffley that a Bruton violation occurred, but disagrees that it was harmless error. For this reason, Freeman's habeas petition will be granted.

II. FACTUAL BACKGROUND/PROCEDURAL POSTURE

The facts underlying Freeman's conviction are laid out in detail in Judge Heffley's thorough Report and Recommendation and the Court need not recount all of them here. See R. & R. 1-4, ECF No. 37.

In summary, the other individuals involved in the crimes were Andre Collier ("Collier"), Omar Miller ("Miller"), and Rasheed Teel ("Teel"). The victim was Kareem Borowy ("Borowy"). Freeman's alleged role was to drive the other men to Borowy's house and wait in the car while the other men robbed Borowy. However, when confronted at his house, Borowy lied to the other men and told them that he kept his money in a different location. The other men took Borowy outside and forced him into the car, allegedly driven by Freeman. When the car later slowed down, Borowy escaped. Collier chased Borowy and shot him. When he returned to the car, he told Freeman to drive away. Borowy did not survive the shooting.

Teel pled guilty to third-degree murder and agreed to testify for the Commonwealth against his co-conspirators. Freeman has categorically denied participating in the crimes and has maintained his innocence from the time he was first interviewed by detectives. Prior to Freeman's trial, the Commonwealth filed notice of its intent to consolidate the cases against Collier, Miller, and Freeman.

III. DISCUSSION

A. Freeman's Bruton Claim

1. Background Information

Miller gave statements to police which confessed to his participation in the robbery and implicated Collier and Freeman as well. Miller did not testify at trial, but his statements were read aloud to the jury. The statements were redacted to replace all references to Collier and Freeman with the phrases "the first guy" and "the second guy," respectively. After the statements were read into evidence, the trial court cautioned the jury that the statements were to be used only as evidence against Miller, not against Collier or Freeman.

2. Admitting Miller's Confession Violated Bruton

The Court agrees with Judge Heffley's determination that admitting Miller's confession violated Bruton, and need not recount her entire analysis. See R. & R. 12-15, ECF No. 37. In summary, the references to Teel's name (which were not redactedsince he pled guilty), combined with the fact that Miller's statements referred to himself in first person, precluded the possibility that Teel or Miller were "the first guy" or "the second guy" in Miller's statements. Because there were only two other defendants on trial, a juror "'need only lift [their] eyes to [Collier and Freeman], sitting at counsel table' to determine that [they were] 'the other guy[s]'" involved in the crimes. See Johnson v. Superintendent Fayette SCI, 949 F.3d 791, 797 (3d Cir. 2020) (quoting Gray v. Maryland, 523 U.S. 185, 193 (1998)); see also Williams v. Folino, 625 F. App'x 150, 156 (3d Cir. 2015); Vazquez v. Wilson, 550 F.3d 270, 283 n.14 (3d Cir. 2008). Given that Freeman was clearly inculpated by Miller's statements, his Sixth Amendment confrontation right was violated. See Bruton v. United States, 391 U.S. 123 (1968). The issue then turns to whether that violation constitutes a harmless error. See Johnson, 949 F.3d at 798.

3. Harmless Error

In determining whether a Bruton violation is harmless, courts must "assess whether the Bruton error had a 'substantial and injurious effect or influence in determining the jury's verdict'—i.e., if it requires reversal." Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). Reversal is required if the reviewing court finds that the violation caused the defendant "actual prejudice," which is "more than a reasonablepossibility that the error was harmful." Id. at 799 (quoting Davis v. Ayala, 576 U.S. 257, 267-68 (2015)). "Habeas relief must be granted whenever there is 'grave doubt' as to the harmlessness of the error." Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 436 (1995)). In making the determination whether the error was harmless, a reviewing court is to consider five factors:

the importance of the witness'[s] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Id. (alteration in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

Here, Judge Heffley found as follows:

[T]he evidence overwhelmingly suggests that the Brutonviolation was harmless. At trial, the Commonwealth presented significant inculpatory evidence against Freeman that corroborated Miller's statement, namely: (1) Teel testified that Freeman participated in the crimes; (2) three witnesses, Amaris Acevedo, Shageata Simmons, and James Reese, testified that Freeman helped to plan and agreed to execute the crimes; (3) cell phone call logs showed that Freeman communicated regularly with Collier during and after the commission of the crimes; and (4) cell-phone tower data indicated that Freeman's movements were consistent with his involvement in the robbery, kidnapping, and murder of Borowy. Thus, even apart from Miller's statement, there was extensive evidence of Freeman's guilt, thereby eliminating any "grave doubt" as to whether the Bruton error had a substantial and injurious effect on the outcome of the trial.

R. & R. 16, ECF No. 37 (citations omitted).

It is at best doubtful that the evidence of Freeman's guilt, apart from Miller's statements, "overwhelmingly suggests that the Bruton violation was harmless." See id. On the contrary, a fair amount of the evidence against Freeman permits equally an inference of guilt as it does a more benign explanation.

First, as to the cell-phone tower area data, which recorded that Freeman was in the Pottstown area at the approximate time of the crimes, Joseph Coffman (the corporal who prepared the cell-phone data report) testified that taking into account the range of the data, Freeman could have been up to two miles away from the crimes. Trial Tr. 261-63, Apr. 17, 2014, ECF No. 32-4. Given that Freeman frequented the Pottstown area in question, his presence in the area at the time that the crimes were committed would not have been highly unusual.¹

Another piece of cell-phone data is Freeman's call logs, which show several calls made to and received from Collier on the day of the crimes, some of which occurred during the commission of the crimes. Trial Tr. 117-24, Apr. 18, 2014, ECF No. 32-5. This too could give rise to a benign explanation, given that Freeman and Collier were close friends and communicated with each other several times a day on a daily basis.

Second, the next piece of evidence is the testimony of Acevedo, Simmons, and Reese. Judge Heffley found that these three individuals "testified that Freeman helped to plan and agreed to execute the crimes." R. & R. 16, ECF No. 37. Upon close examination, their testimony is not so definitive.

Reese testified that Freeman and the co-defendants were present at his home around lunchtime on the day of the shooting. Reese also testified that he observed Freeman having a conversation with the other co-defendants, but, importantly, he could not hear the entire conversation.² Trial Tr. 190-94, Apr. 16, 2014, ECF No. 32-3. In fact, Reese did not testify that he heard Freeman say anything, agree to participate in the crimes,nod his head, or otherwise make any affirmative gestures.³ Therefore, it is not correct to conclude that Reese testified that Freeman helped to plan and agreed to execute the crimes.

Acevedo testified she saw Freeman with his co-defendants at Reese's house that day. Again, like Reese, she did not testify that she heard what they were discussing. See id. at 236-42 (Acevedo saw them "[j]ust talking - huddled up, talking"). Additionally, Acevedo's testimony conflicted to some degree with Reese's testimony in that she saw Freeman leaving by himself in his car, while Reese saw all four co-defendants get into Freeman's car and leave together.⁴ Id. at 194, 250-51, 254-55. In any case, this testimony does not show that Freeman helped to plan and agreed to execute the crimes.

Finally, Simmons was also at the house on the day of the crimes and testified that she saw the four co-defendants talkingat the house for approximately 15-20 minutes during the afternoon, but she did not hear any of the conversation. Id. at 268. As with Reese and Acevedo, this testimony does not show that Freeman helped to plan and agreed to execute the crimes.

The only piece of evidence directly linking Freeman to the crimes ...